Volume 124 — Massachusetts Reports

Replevin of three carriages. The defendant, who was a deputy sheriff, justified under a writ of attachment of the carriages as the property of Isaiah L. Robinson, Daniel C. Robinson, Thomas Chase, Henry Parkinson and Stephen D. Greeley, copartners, doing business under the name and style of I. L. Robinson & Co. Trial in the Superior Court before Brigham, C. J., who made a report thereof, in substance as follows: The plaintiff proved possession and use of the carnages, and…

<p>Replevin of a wagon. Trial in the Superior Court before Pitman, J., who, being of the opinion that the plaintiff had shown no title to the wagon, directed the jury to return a verdict for the defendant, and reported the case for the consideratian of this court. If the direction was wrong, the verdict was to be set aside and a new trial ordered; otherwise, judgment was to be entered on the verdict. The facts appear in the opinion.</p>

<p>Indictment in five counts. The fourth count, upon which alone the defendant was convicted, charged that the defendant on May 10, 1876, at Boston, “ with force and arms, did unlawfully use a certain instrument, a more particular description of which is to said jurors unknown, by then and there forcing and thrusting said instrument into the body and womb of one Sarah E. Sullivan, she the said Sullivan being then and there pregnant with child, with intent to procure the miscarriage of said Sullivan.”</p> <p>In the Superior Court, before the jury were empanelled, the defendant moved for a postponement of the trial, upon the ground that a material witness was ill and unable to attend at the trial, and the evidence of a physician was given, to the effect that the witness in question was not able even to give his deposition. An affidavit was also presented in support of the motion; and it was not denied that the evidence, if given according to the affidavit, would be material for the defence. Dewey, J., overruled the motion.</p> <p>At the trial, it appeared in evidence that there had been a miscarriage, effected by violence. Lucy Wyman testified that she knew Sarah E. Sullivan to be pregnant, although unmarried; that on May 10,1875, she came to Boston at eight o’clock in the morning, engaged a room for herself and Sullivan, paid for it in advance, and then met, by appointment, Sullivan, who came in upon a later train, with one Bibber, the supposed father of the unborn child; that they went to a hotel, where Bibber asked Sullivan if she did not want to go back; to which she replied that she would not, and he gave her money; that thereafter the witness and Sullivan went to the defendant’s house, where Sullivan disclosed her condition to the defendant, and was alone with her for some fifteen minutes, Wyman being sent out of the room, and then both women went away. In answer to a question by the defendant’s counsel, the witness testified that Sullivan said to her that the defendant had operated on her with something which she concealed with her handkerchief. The witness testified that they went to Mrs. Drake because she had found her card in. the street some weeks before, and then had it in her pocket; the card had on it only the name, “ Mrs. F. B. Drake, M. D.,” and the street and number of the house.</p> <p>The witness further testified that Sullivan passed at their lodging a night of great suffering, and that on May 12, at 8.30 P. M., having been ordered from the house by the keeper thereof, they drove to the defendant’s house, where they remained for two or three days, Sullivan being under the charge of the defendant. On the part of the defendant, it was denied that either said Sullivan or said Wyman was at any time in the house.</p> <p>Albert P. Stickney testified that on May 12, at 8.30 p. M., ha drove the two girls in his hack from their lodging to the corner of D Street and Broadway, in South Boston, where the defendant lived,, and left them upon the sidewalk, but did not know where they went. He further said, upon cross-examination, that his order-book would state that he took these two girls only to the Albany Depot, and that, whenever he had spoken of this occurrence, he had said that he had taken them to the Albany Depot, until he testified before the coroner’s inquest, when he first said that the destination was, in fact, South Boston; and, in explanation for giving different statements, he said it was not customary to give correct information as to the places persons requested drivers to go, unless under oath.</p> <p>This was the only evidence tending to connect the defendant with the procuring of the miscarriage, except that Wyman, who had always lived in Woburn, described accurately the internal arrangement of the house of the defendant, as appeared by other evidence. It appeared, however, that she had had abundant opportunity to confer with other witnesses and persons who had been in the house; and had been in Boston and with leisure to make inquiries for a month before the trial; but it did not appear that she had ever talked or inquired about the house.</p> <p>After all the evidence for both sides was in, the defendant asked the judge to rule as follows: “ 1. That Wyman was an accomplice ; that it would not _ be safe to convict upon her testimony, unless corroborated in a material point, and that it was not so corroborated; and that it was unsafe for the jury to convict the defendant upon said count. 2. That there was not evidence to warrant a verdict of guilty upon said count.”</p> <p>The judge refused the second request, and, upon the first, instructed the jury as to what must be proved to constitute a person an accomplice, and that it would not be safe to convict on the testimony of an accomplice who was not corroborated; that it was for them to say whether Wyman was an accomplice in such a sense that her testimony should be wholly discredited, and that they would be warranted in considering, in corroboration of her statements, the testimony of Stickney, as also the fact that Wyman was able to describe accurately the interior of the defendant’s house, and the fact, if they so found, that Sullivan and Wyman were taken into the house of the defendant on the evening of May 12. The jury returned a verdict of guilty on the fourth count; and the defendant alleged exceptions.</p>

Indictment, charging that the defendants, on January 1, 1576, and on divers other days between that day and the day of the finding of the indictment, at Marlborough, “ did keep and maintain a certain building, to wit, a dwelling-house, used as a house of ill fame, resorted to for prostitution, lewdness and for illegal gaming, and used for the illegal sale and keeping of intoxicating liquors, the said building, so used as aforesaid, being then and there a common nuisance.” In…

Complaint to the Police Court of Cambridge, charging the defendant with exposing and keeping for sale intoxicating liquors with intent unlawfully to sell the same.

Indictment, under the Gen. Sts. c. 87, § 6, for keeping and maintaining a tenement in .Woburn, used for the illegal sale and illegal keeping of intoxicating liquors, the same being a common nuisance. Trial in the Superior Court, before Pitman, J., who allowed a bill of exceptions in substance as follows : The evidence tended to show a sale of several glasses of ale by the defendant’s wife on a single occasion, in his presence.

Indictment for receiving stolen goods. At November term 1876 of the Superior Court, the defendants, when called for trial by jury, filed the following plea or challenge to the array of the petit jury: “ And now come the said John H. Walsh and Rosanna Walsh, in their proper persons, when the jury is about to be empanelled to try the issue found on said indictment, and say that the said jury is an illegal jury, and each juror drawn is not a legal juryman, and not competent to…

Contract, in several counts, for breach of agreements to accept deeds of certain parcels of land purchased by the defendant at a sale by auction, and to pay the prices at which they were struck off to him by the auctioneer.

<p>In an action for injuries caused by a vicious animal kept by the defendant in his pasture, the mere fact that the plaintiff was a trespasser at the time will not, as matter of law, defeat the action, if his own negligence did not contribute to the injury; and the fact that he knew that the animal was in the pasture, and was dangerous, is not conclusive evidence of negligence on his part, hut should be submitted to the jury; hut an instruction that, if the plaintiff was guilty of negli gence which contributed to the injury, he could recover, if the defendant’s negligence was of a more gross and unpardonable character, is erroneous.</p>

<p>TORT, with a count in contract, both counts being alleged to be for the same cause of action. Writ dated February 5, 1876. Trial in the Superior Court, before 'Brigham, C. J., who directed a verdict for the plaintiff, and reported the case for the determination of this court, The material facts appear in the opinion.</p>

<p>A person may change his domicil from one town to another, merely because he wishee to diminish the amount of his taxes.</p> <p>Ia an action against a town to recover the amount of a tax, assessed on the personal property of the plaintiff on the first day of May in a certain year, and paid under protest, it appeared that, in the March preceding, the plaintiff left the town. The jury were instructed that if he did not leave in good faith, with a view of acquiring a domicil elsewhere, his domicil would remain in that town; and that the fact that he was not taxed that year in the town to which he contended that he removed, and all his acts to prevent a disclosure or discovery, by the assessors of that town, of his residence there, might he considered as bearing on the question whether he removed in good faith. Held, that the town had no ground of exception.</p> <p>In an action against a town to recover back a tax assessed on the personal property of the plaintiff, who contended that he was not an inhabitant of the town on the day the tax was assessed, the defendant excepted to the exclusion of evidence that, after the tax was assessed, the plaintiff sought an interview with the assessors, and said he wanted no trouble, and would pay one half the tax assessed, if they would abate the rest. Held, that the evidence related to an offer of compromise merely, and was rightly excluded.</p> <p>In an action against a town to recover back a tax, the issue was whether the plaintiff was an inhabitant of the town on the first day of May. The town offered in evidence office copies of deeds to the plaintiff, made in March and April of that year, after the date when he contended that he had removed from the town, and in which he was described as of that town. Held, that, no notice having been given to the plaintiff to produce the originals, the copies were properly excluded.</p>

<p>Tort, under the Gen. Sts. c. 88, § 59, to recover double the amount of the damage sustained from the bite of a dog.</p> <p>At the trial in the Superior Court, before Brigham, C. J., there was evidence tending to show that the plaintiff, a boy thirteen years old, while upon a narrow foot bridge, which the defendant’s dog was about to cross, and which he had a right to cross unmolested, endeavored to prevent him from crossing, by striking at him with a stick about three feet long, which he held in his hand, and that, as the dog came within reach for the purpose of crossing, he struck him over the back with the stick, and thereupon the dog snapped at and bit the plaintiff on the leg, giving a single grip as he passed him. The dog was a large dog, weighing about one hundred pounds.</p> <p>The judge gave general instructions not excepted to, and, at the plaintiff’s request, instructed the jury as follows :</p> <p>“ 1. If the plaintiff did strike the dog, and if he thereby did by his own act bring the injury upon himself, he may, notwithstanding, recover in this case, if the jury believe the boy acted with such care as under the same circumstances would have ordinarily been exercised by boys of ordinary intelligence and prudence, of his years</p> <p>“ 2. If the plaintiff was old enough to know that striking the dog would be likely to incite the dog to bite, and did strike the dog, and did thereby incite the dog to bite him, he may nevertheless recover, if the jury think he was in the exercise of such care as would be due care in a boy of his years.”</p> <p>The jury returned a verdict for the plaintiff; and the defendant alleged exceptions to the above rulings.</p>

<p>In an action to rescind a sale of personal property, on the ground that it was induced by the false and fraudulent representations of the defendant, it appeared that the defendant, who had a large and valuable real estate, was requested by the plaintiff to make a statement of his affairs; and that, at a subsequent interview, he took out a memorandum book, apparently read it, and said: “ I want to tell you how I stand. I could pay every dollar of indebtedness of mine, including the mortgages on my real estate, and not owe on that real estate more than $15,000 to $20,000.” Held, that whether the statement was the expression of an opinion, or the representation of a material fact, was for the jury.</p>

<p>A mortgagor of land covenanted to keep the building, standing on the land, insured against fire, for a certain sum, for the benefit of the mortgagee, at such office as the latter should approve. More than a year after the mortgage was executed, the mortgagor, without the mortgagee’s knowledge or approval, procured a policy in his own name for a less sum, a portion only of which was on the building, the rest being on the mortgagor’s personal property. The mortgagor kept the policy until after a loss and never delivered it to the mortgagee, who, after the loss, gave notice of his claim to the insurance company; but the latter, which had no knowledge of the terms of the mortgage, paid the amount of the loss to the mortgagor. The mortgagee subsequently brought an action at law, on the policy, in the name of the mortgagor. Held, that the mortgagee had no equitable lien upon the policy, which he could thus enforce.</p>

<p>The provisions of the Gen. Sts. c. 12, § 33, do not authorize the sale, by a collector of taxes, of an undivided interest in land.</p> <p>An advertisement of a collector of taxes, which offers for sale a certain parcel of real estate, “ or such undivided portions thereof as may be necessary,” invalidates a sale thereunder, although, in fact, the whole parcel is sold.</p>

<p>An action of contract cannot be maintained on a state of facts which is not sufficient to authorize the finding of a contract express or implied.</p>

Writ of entry, dated August 11, 1876, to foreclose a mortgage of four parcels of land in Oxford. Plea, mil disseisin as to a part of the fourth parcel, and a disclaimer of title as to the residue.

Contract against Thomas Rice, William O. Brown and Daniel Wetherbee, three of the sureties on the following promissoiy note, signed by the persons named therein: “Fitchburg, September 15, 1873. “ For value received, we, H. A. Blood as principal, E. P. Carpenter, Daniel Wetherbee, John^Il.

Two ACTIONS OE CONTRACT against the defendants as makers of a promissory note for $1000, dated February 2, 1874, payable on demand to Lyman Drury or order, purporting to be signed on its face by Lucius W. Pond, and on its back by the defendants, and indorsed by Drury to the plaintiff. Writs dated May 6, 1876.

<p>A town, having purchased a new burial-ground and voted to give, “in exchange, lots therein free of expense to those holding lots in the old,” at a town meeting, called “ to see if the town will adopt a code of by-laws for the new cemetery and to act on any motion relating to that or any other cemetery in town,” adopted a code of by-laws which constituted the selectmen a board of trustees to take charge of the new burial-ground, authorized them to give deeds of lots, subject to certain conditions, to purchasers, and in exchange for lots in the old burial-ground, and pro-vi led that “ all money received by the trustees for the lots in this cemetery, and the avails of all lots received in exchange for said lots, shall constitute a fund for the purpose of defraying the expenses of repairing and improving the avenues, walks and public grounds of the cemetery.” Deeds of lots were given subject to these by-laws “ and to any by-laws, rules or regulations which said town may hereafter adopt.” Held, that no trust was created by the by-laws, which could be enforced in equity, by the owners of such lots, against the town.</p>

<p>A plaintiff, who joins issue upon an answer in abatement, which was filed too late and improperly joined to an answer on the merits, is not entitled, after the case is opened to the jury, but before any evidence is offered, to go to the jury on such issue, and, if the issue is found against the defendant, to final judgment thereon , but the presiding judge, upon the defendant’s waiving that part of his answer, may direct the trial to proceed.</p> <p>On the issue whether A. and B. were partners, in 1875, in an unincorporated lumber manufacturing company, established in 1865, there was evidence that the articles of association of the company required the election of a president, clerk, treasurer and agent, the two latter being required to give bonds to the president .for the faithful discharge of their duties, and to render accounts semiannually; that the business of the company was required to be and was conducted by the treasurer and agent, who received salaries and devoted their entire time to it; that meetings of the members were to be called by written notice from the clerk; that meetings of the company were regularly called, and the records of the same kept by the clerk; . that any member could sell his interest to a stranger, such sale carrying with it the right to membership and to a participation in the future profits of the business; that A. was regularly admitted a member; that the treasurer, who was a member of the company, died in 1868, and a new treasurer was immediately chosen; that at a subsequent meeting, at which A. was chosen clerk, it was voted that the treasurer continue the business of manufacturing and selling lumber; that A. attended all subsequent meetings, and recorded other votes to hire money and carry on the business, and to empower one of the members to close up the business in the best manner for all concerned; that B., soon after the death of the treasurer, purchased the interest of an original member, agreeing to assume all his liabilities; that B. was subsequently present at a meeting of the company, of which he was notified by the clerk, at which it was voted to raise money to carry on the business; that B. called himself a surviving partner of the deceased treasurer in an answer to a bill in equity brought by the latter’s administrator against the other members and the original member whose interest he bought; that B. signed a note with the other member's to raise money for the business, and also signed a power of attorney, authorizing the agent to sell real estate for the benefit of the company; and that B. said he would like to have the thing settled, and would pay his proportion if he could find out what it was. Held, that the evidence would warrant a finding that A. and B. were partners in the company.</p>

<p>If a contract of sale is written in this Commonwealth, hut is executed, delivered and recorded in a foreign state, where the property sold is at the time, and where it is afterwards attached and sold on execution as the property of the seller, the rights of the seller, in an action against the attaching officer or the creditor, are to be settled by the law of that state.</p> <p>Upon the question of the unwritten or common law of another state, the books of reports of cases adjudged in its courts are admissible in evidence; and the. decision »f the judge, who tries the case without a jury, as to what that law is, is final, if the evidence is conflicting, and if it is not contended that the whole evidence will not warrant his conclusion, although the only evidence offered is contained in books of reports of cases adjudged, and the bill of exceptions states the cases put in evidence.</p> <p>Questions, upon which no ruling was asked or exception taken at the trial, are not open upon a hill of exceptions.</p>

<p>Under the Gen. Sts. c. 124; § 81, charges of fraud may be filed, when a person ar rested on mesne process applies to take the oath for the relief of poor debtors.</p> <p>At a trial, under the Gen. Sts. c. 124, §§ 31-34, of a charge that the defendant purchased goods from the plaintiff with an intention not to pay for the same, if there is evidence of a general scheme of fraud on his part, evidence of other purchases of goods made by the defendant of other persons at about the same time, as well after as before; the schedules of his creditors and assets subsequently filed in bankruptcy, and the testimony of his assignee that there were no assets; and a statement made by him to a creditor that on a certain day he would pay all his creditors in full, on which day a meeting of his creditors was called,are admissible.</p> <p>At a trial under the Gen. Sts. c. 124, §§ 31-34, of a charge that the defendant, who was arrested on mesne process, contracted a debt due the plaintiff with an intention not to pay the same, the plaintiff must prove that the debt was contracted as alleged.</p>

<p>Petition of eleven citizens of the county of Bristol, praying for the appointment of commissioners under the St. of 1872, c. 295, § 1, authorizing the Old Colony and Newport Railway Company to construct a highway and railway bridge over Taunton Great River.</p> <p>Commissioners were appointed, who heard the parties, and made an award, in which they determined that the sum of $76,361.20, being one fourth part of the equitable cost of the bridge, should be paid to the railroad company; and decreed that the city of Fall River and the towns of Somerset and Swansea were specially benefited, and that they and the county of Bristol should pay this amount in certain proportions.</p> <p>The report of the commissioners was addressed to this court, and filed in the clerk’s office. The petitioners, on behalf of the county commissioners of the county of Bristol, moved that the award be accepted. The city of Fall River and the towns of Somerset and Swansea objected to the acceptance of the award on the grounds that the St. of 1872, <?. 295, made no provision for the return of the award to any court, and that so much of it as authorized the railroad company to build the bridge, and directed one fourth part of the expense thereof to be apportioned between the county of Bristol and such cities and towns as were specially benefited, was unconstitional and void.</p> <p>Hearing before Lord, J., who reserved the case for the consideration of the full court.</p>

Trustee process. Writ dated April 10, 1875, and served on the same day.

Contract upon promissory notes and upon an account annexed. Writ dated July 24, 1873. Answer, that, before the date of the writ, the defendant was duly adjudged a bankrupt under the bankrupt laws of the United States, and that the plaintiff proved against his estate in bankruptcy the debts sought to be recovered in this action, and that those debts were due from the defendant to the plaintiff at the date of the commencement )f the proceedings in bankruptcy.

Tort for the killing of a horse on the Nashua and Wilton Railroad, by the defendant’s locomotive engine, the railroad being leased and operated by the defendant.

<p>Contract. The declaration contained two counts. The first count was upon a written guaranty. The second count alleged .hat the plaintiff was the holder of a mortgage and notes of one Evans; that the defendants, in order to secure the payment of certain indebtedness of Evans to them, requested the plaintiff to assent to a sale of the property, upon which he held the mortgage, to one Snow, the latter assuming and agreeing to pay to the defendants Evans’s indebtedness to them; that in consideration of such assent, the defendants agreed to pay to the plaintiff ¡.uch portion of the amount of the mortgage and notes as Snow should fail to pay, Snow having agreed with Evans and the defendants to pay said mortgage and notes , that, in consideration of the defendants’ agreement, the plaintiff assented to the sale to Snow, and the sale was made; that both Snow and the defendants, though requested, had refused and failed to pay the mortgage and notes ; and that “ said notes and mortgage remain in no part paid.” Answer, the statute of frauds.</p> <p>At the trial in the Superior Court, before Gardner, J., it appeared that the plaintiff held the overdue notes of Evans secured by a mortgage of personal property, the mortgage containing the condition that the grantor should not, “ except with the consent in writing of the grantee or his representatives, attempt to sell” the property mortgaged. The plaintiff admitted that the agreement relied on in the second count was not in writing; and the judge ruled that the agreement, if proved, was within the statute of frauds, and excluded evidence thereof.</p> <p>On the first count, the plaintiff introduced evidence tending to show that the instrument declared on was signed by the defendants and was lost; and offered to show what the contents of the paper were, by showing the conversation of the parties in the office where the paper was drawn up. The judge ruled that the plaintiff might show the contents of the paper by any person who had read it, or knew what its contents were; but that the talk of the parties in relation to what they proposed to agree to was not evidence of its contents; and excluded the evidence.</p> <p>The jury returned a verdict for the defendants; and the plaintiff alleged exceptions.</p>

Three actions of contract upon promissory notes made by husband and wife after the St. of 1874, e. 184,* took effect. The consideration of the note in each case was a debt of the husband to the payee, and not money advanced or expended on the separate property of the wife. The first action was brought against the wife alone after the death of the husband. The second and third actions were brought against both husband and wife.

<p>In an action against a married woman for goods alleged to have been sold her on her separate credit, the defendant put in evidence that the plaintiff had previously brought and discontinued an action against herself and her husband jointly, for the same cause of action. Held, that the plaintiff might show, in rebuttal, that that action was brought against the husband by an error of the plaintiff’s attorney.</p> <p>In an action against a married woman for goods sold and delivered, the defendant’s bill of exceptions stated that her husband testified, on cross-examination, against her objection and exception, that, at the time he received from the plaintiff a certain pass-book “ he could not say how much he owed or was behind from being out of work; that he had not, as he remembered, been refused work; and that, during the time of the plaintiff’s bill, he was not out of work for two thirds of the time, but was afterwards, perhaps.” Held, that no ground of exception appeared.</p> <p>In an action against a married woman, for goods sold and delivered on her separate credit, the defendant’s bill of exceptions stated that the plaintiff put in evidence, in rebuttal, to show the defendant’s dealings with another person, who had furnished milk on her credit, which she had paid for, but did not state what her evidence was which this rebutted. Held, that no ground of exception appeared.</p>

Writ of entry, dated November 22, 1876, against James Smith and James Martin, to recover a parcel of land in Lowell.

<p>Tort for personal injuries received in the defendant’s mill. Trial in this court, before Ames, J., who ruled that, upon the evidence, the plaintiff could not maintain his action, and, after a verdict for the defendant, reported the case for the consideration of the full court. The nature of the evidence appears in the opinion.</p>

<p>The St. of 1875, c. 68, authorizing the court, when a defendant has dissolved, by giving bond, an attachment made four months before the commencement of proceedings in bankruptcy, and has been or is afterwards adjudged a bankrupt, to enter a special judgment for the plaintiff, to enable him to proceed against the sureties on the bond, is not in conflict with the United States bankrupt act; and such a judgment may be entered after a defendant, who executed such a bond pending the proceedings in bankruptcy, has obtained his discharge.</p>

Contract for supplies furnished to Lilia Hailey, John Hailey and Estella Hailey, in the years 1874,1875 and 1876. The case was submitted to the Superior Court on a statement of facts, of which all that need be stated was as follows : On March 81, 1876, the plaintiff gave the defendant the following notice: “ Shelburne Falls, Mass., March 31, 1876. To the overseers of the poor of the town of Buckland.

Petition to the county commissioners for a jury to assess damages for the taking of land for the construction of the respondent’s railroad. At the trial, before a sheriff’s jury, there was evidence, admitted against the respondent’s objection, tending to show the value of the land and that the respondent began work thereon in the construction of its railroad in August, 1873. The location of the railroad was not filed until March 20,1874.

Tort for the conversion of personal property, attached by the defendant, a deputy sheriff, as the property of John C. Cosgrove. At the trial in the Superior Court, before Dewey, J., it appeared that Cosgrove had previously sold the property to Michael Bergin, who had mortgaged it to the plaintiff.

Contract on an account annexed for use and occupation of a parcel of land in Southbridge, from January 1, 1872, to the date of the writ, August 12, 1875.

<p>Contract upon a policy of insurance, dated November 1, 1875, by which the defendant insured Patrick Johnson for the term of one year from November 1, 1875, in the sum of $3000, “ on his ten tenement frame block,” “ payable in case of loss to Samuel P. Harrington, mortgagee, as his interest may appear.” The policy contained the following printed'provisions: “ Consent to insure to | the value,” “ whenever a building hereby insured shall be unoccupied; ” “ or if, without the consent of the company, expressed in this policy, the assured shall now have, or shall hereafter make, any other contract of insurance against loss by fire on the property, or any part thereof hereby insured, whether such other contract shall be valid or not against the parties thereto, or either of them/’ “this poEcy shaU be void.” “ In case of any other contract of insurance upon the property hereby insured, whether such contract be valid or not, as against the parties thereto, or either of them, the assured shaH not, in case of damage, be entitled to recover of this company any greater portion of the loss or damage sustained than the amount hereby insured shall bear to the whole amount insured on the property, nor more than a Eke proportion of three fourths of the actual value of the property insured at the time of the loss or damage.” Writ dated March 23, 1878.</p> <p>Trial in this court, before Devens, J., who reported the case for the consideration of the fuU court upon the foHowing facts:</p> <p>In November, 1872, an appEcation in writing was made to the defendant for insurance to the amount of $3000, on the property described in the above policy, valued at $9000, for the term of three years, by WilEam Bliss, describing himself as the owner of the property. The appEcation set forth the location of the property; described it as a “ ten tenement frame block,” occupied by “ ten tenants as residences only; ” and stated that it was “ mortgaged to Samuel P. Harrington, payable to same to extent of mortgage claim.” Opposite the printed words: “ Other insurance. If any, at what office, and how much,” was written, “ Other insurance permitted.”</p> <p>On November 8, 1875, Patrick Johnson made appEcation to the defendant for insurance on the same property, to the amount of $3000, with the same valuation, for the term of three years. The application stated that the applicant was owner of the property ; that it was mortgaged for $4000 to Samuel P. Harrington, poEcy to be payable to him; and that it was insured for $3000 in the “ Old Mutual, Worcester.” Opposite the printed headings relating to the situation of the property, the description and occupancy of the buildings, was written the word “renewal.” It was agreed that this word referred to the former application by Bliss. The poEcy in suit was issued on the above appEcation of Johnson.</p> <p>The house was partially destroyed by fire on December 18, 1875. The plaintiff, at the time of the insurance and of bringing the writ, held a mortgage on the property insured for the sum of $4000. At the time the policy was procured and issued, there were two outstanding policies on the same property, obtained by Johnson for his own benefit, of $1500 each. Neither of these was in the “ Old Mutual, Worcester.” After the loss, the defendant company, the two other insurance companies and Johnson agreed that the amount of the loss was $1625, and apportioned the same, so that the defendant was to pay $812.50, and each of the other companies $406.25. This agreement and apportionment was without notice to the plaintiff and without his knowledge. The plaintiff-had no actual notice or knowledge of the other insurance.</p> <p>The building, at the time of the loss, was fitted up for ten tenements, two of which were actually occupied by Johnson and his family, and he was in legal possession of the whole and had control of the same.</p> <p>The defendant admitted that the property insured was worth at the time of the insurance at least $4000, and- the plaintiff admitted that, including the policy in suit, the property was insured for more than three fourths its value at the time of insurance.</p> <p>The plaintiff offered evidence tending to show that the loss was $2850, and contended that he was entitled to recover the 'whole amount of the loss.</p> <p>If the plaintiff was not entitled to recover, judgment was to be entered for the defendant. If the plaintiff was entitled to recover, and the adjustment was binding on the plaintiff, judgment was to be entered for him for $812.50. If the plaintiff was entitled to recover, and was not concluded by the adjustment, the damages were to be assessed by assessors, under instructions whether the plaintiff should recover the whole amount of the loss, or should recover only such portion as the amount insured by the policy in suit bore to the whole amount insured on the property.</p> <p>The case was argued in 1876, and reargued in 1877.</p>

<p>In an action against a city to recover the amount of a tax, assessed on the personal property of the plaintiff on May 1, 1876, and paid under protest, there was evidence that until 1869 the plaintiff had lived in the defendant city for many years with his family in a house owned by him; that, in that year, being dissatisfied with the amount of tax there assessed on his personal property, he gave notice to the assessors that he had removed his residence to another town, in this state, where at the time he owned the place on which he was born, and had built a house, in which he had lived with his family from June to October or November in each year; that, after giving the notice, he continued to live there, as before, for a part of each year, voting and being taxed only in that town, taking part in town meetings, and occasionally serving on town committees. Held, that the jury would be warranted in finding that the plaintiff was not legally taxable in the defendant city, although he removed to lessen his taxation, and on the day the tax was assessed he was with his family living in his house in that city. Held, also, that a request by the defendant, for a ruling that the plaintiff was prima facie an inhabitant of the defendant city, and there resident, if he and his family were on May 1 living in a house of his own in the same way in which he had lived during three years in which he admitted that he had been a taxable inhabitant of the defendant city, was properly refused.</p> <p>If a person has a dwelling-house in each of two towns of this Commonwealth, he may have his home in one town for the purposes of taxation, although he spends the greater portion of the year in the other, and is there on the first day of May.</p> <p>In an action against a city to recover the amount of a tax, assessed on the personal property of the plaintiff, and paid by him under protest, the issue was whether the plaintiff had in good faith changed his residence to another place. The defendant contended that the change was not in good faith, but to avoid taxation. The plaintiff was asked what amount of personal property he had not exempt from taxation. This question he answered. He was then asked what amount of per eonal property he had, and what tax he paid on stock in a foreign state. These questions he declined to answer, and the judge refused to compel him to answer them. Held, that the defendant had no ground of exception.</p>

Contract, by the administratrix of Lucius Daggett, upon the following promissory note: “ Attleborough, Dec. 4, 1860. For value received I promise to pay Lucius Daggett two hundred and fifteen dollars and eighty-eight cents on demand with interest, being renewal of note dated Dec. 5, 1854. John Daggett.” ■ On the back was this memorandum: “ December 3, 1866. I hereby renew the within note. “ Attest, J. W. Capron. John Daggett.” Writ dated May 25,1876.

<p>Contract - on a bond, executed to the plaintiffs by the defendant’s intestate, and conditioned to keep and cause to be kept at all times thereafter open and unobstructed, for the benefit of the plaintiffs, their heirs and assigns, a certain way in Edgartown, described as “ beginning at the northeast corner of a lot of land belonging to said plaintiffs; ” [thence by various courses and distances which it is unnecessary to state;] “ thence in an easterly direction to the south corner of William P. Chadwick’s shop; thence on a straight line to the shop of Joseph ' V. Kelley; then across the way aforesaid to the first bound.”</p> <p>At the trial in the Superior Court, before Bacon, J., it appeared that the alleged breach of the bond was the building of a fence within the limits of the way, and that the only question was as to the construction of the words in the bond, “ to the south corner of William P. Chadwick’s shop; thence on a straight line to the shop of Joseph Y. Kelley.” The plaintiffs contended that that line ran from the south corner of William P. Chadwick’s shop to the most southern corner of the shop of Joseph Y. Kelley, both shops being on the north side of the way, proved that the fence was within such line, and offered evidence tending to show that that corner was the nearest point to Kelley’s shop; but this was denied by the defendant.</p> <p>The defendant contended that the line referred to in the bond extended from the south corner of Chadwick’s shop, (about which point there was no dispute,) to a point which was formerly the most southern corner of a platform, which was standing when the bond was given, and which was then a part of Kelley’s shop. It was agreed that the fence was upon this line.</p> <p>The defendant offered evidence tending to show that Kelley’s shop was constructed about seventy years ago, was originally designed as a furniture shop, and was built in the following manner : The whole structure rested on piles driven in the ground, upon which rested certain timbers called false or lower sills, which were mortised into the ends of the piles. On these false or lower sills rested the true or upper sills, into which were built and mortised all the upright walls of the building. The lower or false sills extended out beyond the other sills, on the south side, about three feet, and upon them was built a platform, designed for drying and exposing furniture, which extended to the south the whole width of the shop, as far as the false sills, and was about three feet in height. The platform was built when the rest of the structure was, and was all standing substantially as built, at the time the bond was executed. The defendant also offered to show that the premises described in the bond were part of an ancient and much used way, whose bounds were defined and well known to all parties, which way ran by, and was bounded in part by, the south side of the platform, and had existed from time immemorial; that the bond was given in settlement of, and in consequence of, certain controversies between the parties, in regard to the use of the ancient way; that the bounds recited in the bond were, and were intended to be, the bounds of this ancient way; that the parties intended by the expression, “to the shop of Joseph V. Kelley,” the most southern corner of the platform, which corresponded with the bounds of this ancient way, and that, subsequently to the giving of the bond, acts were done by the parties indicating that such was the construction put upon the words by them.</p> <p>The plaintiffs objected to the evidence offered, and contended that the most southern corner of the upright walls of Kelley’s shop was the point designated by the words of the bond.' The judge thereupon refused to admit the evidence, and ruled that the expression, “ to the shop of Joseph V. Kelley,” should be construed to mean the corner of the upright main walls of the shop, at the time the bond was given ; that evidence could not be introduced showing that any other point was intended by the parties using the words; that the evidence offered by the defendant was inadmissible; and, no further evidence being offered,directed the jury to find, upon the facts proved by the plaintiffs, that there had been a breach of the bond.</p> <p>The jury retained a verdict for the plaintiffs; and the defendant alleged exceptions.</p>

<p>Tort for damage done to the property of the plaintiff on September 19, 1876, by a locomotive engine of the defendant corporation, at a place where a highway crossed the defendant’s road. Writ dated December 19,1876. The Merchants’ National Bank of Boston, summoned as trustee, answered, admitting that, at the time of service upon it, “ there was deposited in said bank, in the name of the Eastern Railroad Company, the sum ot $2,541.65; ” and further answered that, upon its information and belief, the above sum “was a part of the income of the Eastern Railroad Company, earned and acquired after the first day of September, A. D. 1876.”</p> <p>In the Superior Court, judgment was ordered for the plaintiff the trustee was charged on its answer and appealed to this court,</p>

<p>A railroad corporation, neglecting, when a train is approaching a place where its road crosses a highway at grade, to give due warning of its approach, is liable to one injured thereby, though the injury results, not from a collision, but from the fright of the horse he is driving, which was not guarded against for want of such warning.</p> <p>The St. of 1876, c. 236, is not a bar to an action subsequently brought against the Eastern Railroad Company for a prior injury occasioned by its negligence, and for which an action might have been maintained at common law before the passage of that statute.</p>

Bill in equity against the Eastern Railroad Company and the trustees of the same, appointed under the St. of 1876, e. 236, setting forth the taMng of the plaintiff’s land by the railroad corporation in 1872, the assessment of his damages therefor in 1874, upon due proceedings had before the county commissioners, the subsequent- issuing of a warrant of distress in his behalf to compel the payment of such damages, and the non-payment of such warrant for thirty days thereafter.

Trustee process. Writ dated October 9, 1876, and served on the Naumkeag Steam Cotton Company, summoned as trustee, the next day. Franklin White and another appeared as claimants of the funds in the hands of the trustee.

<p>In an action against a city to recover for injuries occasioned by a defective highway, the issue was whether the defect had existed for twenty-four hours. The judge instructed the jury that the city would be liable for the injury caused by that defect, though a rain on the day of the accident had increased the extent of the defect or the danger to the persons passing over the sidewalk, and, refusing to give in terms an instruction that “ there is no defect unless the way is at the time presently perilous or dangerous,” gave the instruction that “the jury must find that there was a defect that had existed for more than twenty-four hours that had rendered it unsafe for present travel, though the defect may have been secret and not developed until the time of the accident.” Held, that the instructions were erroneous.</p>

Writ oe entry, dated August 20,1875, to recover a parcel of land in Hamilton. Plea, nul disseisin. Trial in the Superior Court, without a jury, before Qolhurn, J., who allowed a bill of exceptions in substance as follows : On April 12, 1871, the demanded premises were set off to the demandant by virtue of a levy of an execution on a judgment in his favor against the tenant, recovered in the Superior Court for the county of Suffolk.

<p>Under the Gen. Sts. c. 155, if a part payment has been made on ar attested promir spry note, the original payee may maintain an action npon it at any time withir twenty years after the date of such payment.</p>

<p>In an action on a recognizance entered into under the Gen. Sts. c. 3 24, § 10, the fact that the person, on whom was served a notice oí the desire of a person arrested to take the oath for the relief of poor debtors, is a confidential clerk of the creditor and has a general power of attorney from him to transact business, is not conclusive evidence that he is the agent of the creditor within the meaning of the Gen Sts. c. 124, § 13; and, there being other evidence in the case, it is a question for the jury whether the fact of such agency is established.</p>

<p>When the notice of a desire to take the oath for the relief of poor debtors may, under the Gen. Sts. c. 124, § 13, be served “by any officer qualified to serve civil process,” “on the officer who made the arrest,” the latter cannot, without special authority from the creditor, accept service, or waive any of the rights of such creditor.</p>

Petition, under the Gen. Sts. c. 150, to the Municipal Court of the city of Boston, to enforce a mechanic’s lien for labor performed and materials furnished, to the amount of $203.50, in the erection of a building in Boston. At the trial in the Municipal Court, the only defence relied on was that the court had no jurisdiction of the petition, because the amount of the petitioner’s claim was more than $100.

<p>A person, who receives two promissory notes upon an agreement to release a demand upon their payment at maturity, is not debarred from his original cause of action, by having one note discounted and taking it up when protested for non-payment and by prosecuting the other to judgment in the name of a friend but for his own benefit, nothing being received by him upon either note, and the discounted note and an assignment of the Judgment being tendered by him in court.</p> <p>A statement made by an attorney of a party, in his presence, as to whal the party woald testify to, a written motion on the party’s behalf containing in substance the same statement as a ground for amendment having been previously filed, is admissible to contradict the party when testifying in another case.</p>

Habeas corpus of a person alleged to be unlawfully restrained of his liberty by a constable of Boston. At the hearing, before Colt, J., the following facts appeared: On or about April 9,1875, F. H. McCaffrey brought an action of replevin against Michael McCarthy, and a bond, signed by McCaffrey as principal, and Merrick S. Creagh, Henry Pazolt and W. P. Gorman as sureties, was given.

<p>Contract on the Gen. Sts. c. 12, § 19, by the collector of taxes of Nantucket for the year 1875, to recover a tax duly assessed that year upon a trust fund in the hands of the defendant. Writ dated December 12, 1876. The case was submitted to the Superior Court, and, after judgment for the defendant, to this court, on appeal, on the following agreed facts:</p> <p>The defendant was duly appointed, and now is, trustee under the will of Selina Herring, late of Boston, deceased, whose will was proved and allowed in the Probate Court for the county of Suffolk, on March 17, 1856, the original trustee named therein having deceased. The fourth clause of her will was as follows:</p> <p>“ All the rest, residue and remainder of my estate, real and personal, I do give, devise and bequeath to Henry Dawes, of said Boston, his heirs and assigns, in trust nevertheless to and for the following purposes; that is to say, in trust, to hold and manage the trust estate, and to add interest to principal from time to time, using a reasonable and sound discretion in making all investments, and to allow the trust estate so to accumulate until the decease of the said Thomas J. Herring, my surviving son; and upon said decease I do order and direct that the said trust estate shall be equally divided among all my grandchildren who shall then be alive, the issue of any deceased grandchild, however, to take the same share its. parents would have had. But as respects the share or part of my grandson Roger, the only child of my deceased son, John M. Herring, I do will and order that the same be still held in trust by the said Dawes or such other trustee as shall be lawfully appointed thereto, the income and interest only to be paid over to the said Roger during his natural life; and from and after his decease I do give and bequeath his said share or part to his lawfully begotten issue; and if he shall have no issue living at the time of his decease, then I do give and bequeath the same to my other grandchildren then alive and their issue, in the manner aforesaid.”</p> <p>The defendant accepted the trust prior to the first day of May, 1875, and continues therein ; ever since .her appointment, a fund has been accumulating in her hands under the testamentary provisions above set forth; and upon said first day of May she was an inhabitant of Nantucket.</p> <p>Thomas J. Herring, named in the will, is still living, ari on said first day of May was an inhabitant of Boston. Op that day there were six grandchildren of the testator living, throe of whom lived in this Commonwealth, and three in other states.</p>

<p>Contract on an account annexed for work and labor. At the trial in the Superior Court, before Aldrich, J., it appeared that on July 28, 1870, the plaintiffs, as the parties of the first part, and the defendant, acting by its president, as the party of the second part, entered into the following agreement under seal:</p> <p>“ The said parties of the first part, for the consideration hereinafter mentioned, agree to provide the material for, and forthwith to commence and complete without delay or intermission, except from the necessities of the weather, a substantial stone wharf, to be located upon the harbor commissioners’ line, on the harbor side of land owned by said gas light company, at the .not of Shepard Street, in Lynn, there to measure in length two hundred feet; and, upon a dock hereinafter described, there to measure in length three hundred and fifty feet, the wall of said wharf to be twelve feet in thickness at the bottom, four feet at the top, and nineteen feet in height, built in a substantial and workmanlike manner, and in accordance with the following specifications. [Then followed the specifications, with a provision that certain “ headers,” of a specified size, were “ to be distributed throughout the wall, at the discretion of the superintendent of said gas light company, for the purpose of binding the same securely together,” “ the front of the wall to he battened two feet and four inches, protected by oak pile fenders, not less than one foot in diameter, placed not more than ten feet apart, driven to hard bottom, and secured to the cap-stones by wrought-iron staples, in the usual manner, and furnished with seven oak belaying posts, not less than sixteen inches in diameter, driven to hard bottom, at such places in the wharf as the superintendent shall determine.”]</p> <p>“ Also, in addition to the excavation necessary for the above-mentioned wall, to dredge a dock, on the easterly side thereof, and a basin, on the southerly side, — both to have a uniform depth of six feet, at mean low-water, at all points within seventy-five feet of the face of the wall; and a channel from, and in continuation of said dock, in a direct line to the nearest deep water, the same to be at least forty feet wide at the bottom, to slope at the sides, at an angle of not less than sixty degrees from a perpendicular, and to maintain the same uniform depth of six feet, at mean low-water, throughout its entire length. Any addition to the wall above named, to be paid for at the rate of twenty-four dollars for each running foot, and additional dredging at the rate of sixty cents per cubic yard.</p> <p>“ All the materials taken from the dock, basin and channel to be disposed of by said party of the first part, as follows, namely: To be deposited within the area enclosed by the wall above mentioned, — the line of the marsh, on the north, — and a line running from the westerly end of the wall, parallel with the longest side thereof, until the middle point of the area shall be twenty inches above the level of the cap-stones of the wharf, and of • a uniform grade. The surplus, if any, to be deposited on the easterly and westerly sides of the dock, upon the flats belonging to the company, inside the harbor commissioners’ line, or upon the adjoining marsh, at the option of the company. It being understood and agreed that, after the filling in, and completion of the wharf, and the disposal of material as above specified, any sur rlus which the company may require to be raised and deposited upon said wharf, shall be paid for at the rate of twenty cents per .ubic yard additional.</p> <p>“ And the said party of the first part further agrees to give bonds in the sum of fifteen thousand dollars, with good and sufficient sureties for tlie full and faithful performance of the above contract, in all its parts.</p> <p>“ And the said party of the second part promises and agrees, in consideration of the fulfilment of the above written contract, to pay to the said party of the first part the sum of thirty-eight thousand two hundred and twenty-five dollars, in the manner following. [Then followed a clause as to the mode of payment.]</p> <p>It appeared that the plaintiffs built the wall and did the other work specified in the above agreement; and also built an additional wall, did some extra dredging, and, with the material so dredged, filled in the wharf made by the additional wall. For this work they charged the prices named in the agreement for the building and dredging, and, for the filling, twenty cents a yard. This last item was the only one in dispute.</p> <p>The plaintiffs introduced evidence tending to show that, when the work on the original wall was nearly completed, one Mace, the superintendent referred to in the agreement, and who had charge of the work, came to Lyman Boynton, one of the plaintiffs, and wanted him to extend the wharf; that Boynton said to him that if the defendant proposed to extend the wall further inshore and do the filling behind it, it would be very expensive, compared with the rest of the work, and that they should want more pay for doing it, in addition to what they were getting; that Mace said the defendant must have’it done, and would want to fill as far as the wall was built; that he told Mace it would cost considerably more to do it than it would the other, and they must have more ; that Mace seemed to think that twenty cents a yard would be enough for it, the same as raising the material for the wharf, if there was a surplus, and that was all the defendant would pay for the additional filling; and that he told Mace he wanted forty cents ; that Mace said the wall and dredging were covered by the contract; that he told Mace they would do the wall and dredging at the price named in the contract, and that it was worth forty cents to do the filling; that Mace said he would only pay twenty, and the plaintiffs agreed to do it for that, and went on and did it, in pursuance of this agreement.</p> <p>There was evidence that the filling of the enlarged part of the wharf was necessary for its proper construction, and that the defendant accepted the work done.</p> <p>It being admitted that the whole of the disputed item was due if any part of it was, the plaintiff contended that the defendant was liable, under the verbal agreement, upon the evidence, either for the agreed price of twenty cents, if the jury found that Mace was authorized to make such a bargain, or upon a quantum meruit; that, if there was a verbal contract made after the written agreement, and entirely covering the extended wall, the additional dredging and filling of the wharf, with a separate price for each item, and the defendant adopted and paid the price of the wall and dredging, it adopted also the filling, and that, by adopting, accepting and approving of the additional work, it adopted the price and contract for it; and that the defendant could not adopt a part and reject a part. There was no evidence, except as herein reported, to show that the corporation or any of its officers knew that Mace had assumed to modify, alter or rescind the written contract, or that he had made, if he did make, any such agreement, as the plaintiffs contended, for the additional filling.</p> <p>The judge ruled that the wharf specified in the original contract embraced not only the wharf three hundred and fifty feet long, but also the extension; that while, by the terms of the agreement, the plaintiffs could not be required to build the extension and do the additional dredging, yet, if they elected to proceed under that contract and build the additional wall and do the additional dredging, they would also be required to fill the extended wharf with the material dredged from the dock and basin, so far as was necessary to complete the filling, and that for this they were not entitled to compensation in addition to the price named in the written contract; and that the whole compensation tor extending the wharf was provided for and included in the prices named in the contract; that there was no sufficient evidence to authorize the jury to find that Mace had any authority to rescind, modify or alter the written contract; and that, as the plaintiffs had elected to extend the wall and do the additional dredging at the request of the defendant’s agent, lie at the same time claiming and saying to the plaintiffs that the compensation for the same was provided for in the written contract, the plaintiffs were bound by the same contract to do the filling; that the defendant’s rights could not be affected by its agent’s misunderstanding of the terms of the contract, even if he did suppose that the price of the additional filling was not provided for in the written contract, and, under such misapprehension, had, without authority, stipulated for the payment of the additional twenty cents for the filling. The judge then directed a verdict for the plaintiffs for the amount admitted to he due; and the plaintiffs alleged exceptions.</p>

<p>Replevin of a mare. Trial in the Superior Court, without a jury, before Bacon, J., who found that the plaintiff was entitled to recover, unless the defendant had a lien upon the mare by reason of her having been placed by her owner in the hands of the defendant to be kept, trained and improved; and also found that she had remained for that purpose in the defendant’s possession, which, if nothing else appeared, would entitle him to a lien. But the judge further found that the mare had been placed in the hands of the defendant to be kept, trained and improved so that she might be used for running races for bets and wagers in this Commonwealth, and that she was so used while in the defendant’s possession. The judge therefore ruled that the defendant had no lien on the property replevied, and found for the plaintiff. The defendant alleged exceptions.</p>

Contract on an account annexed, to recover the price of certain sewing machines.

Contract upon a promissory note for $500, payable to the order of the defendant, and indorsed by him to the plaintiff.

Replevin of household furniture. At the trial in the Superior Court, without a jury, before Pitman, J., the defendant introduced evidence tending to show that the plaintiff had executed to him a mortgage of .the property replevied to secure the payment of the rent of certain premises leased by him to her; that she occupied the premises, but failed to pay the rent according to the conditions contained in the mortgage, and for such default on her part he took possession under…

Tort for the obstruction of a passageway. At the trial in the Superior Court, before Putnam, J., it appeared that James A. Pearson, the owner of adjacent lots of land, called lots 12 and 13 on a certain plan, on Sixth Street in Boston, conveyed on May 1, 1861, by a warranty deed, recorded on June 28, 1861, to William P. Houston and Samuel H. L. Pierce, lot 13, referring to that plan, “subject and entitled to a common use with the estate adjoining southeasterly (being lot…

<p>An attachment on mesne process, although made within four months of the commencement of proceedings in bankruptcy, is not, under the IT. S. Rev. Sts. § 5044, dissolved by the institution of such proceedings, but only by an assignment to an assignee, after an adjudication of bankruptcy; and, if no such assignment or adjudication is made, proceedings for a composition, under the U. S. St. of June 22, 1874, § 17, do not dissolve the attachment, or affect the rights of the attaching creditor, if he took no part in such proceedings.</p>

Contract upon two promissory notes signed by the defendant. At the trial in the Superior Court, before Pitman, J., Samuel R. Payson, summoned, on May 6, 1876, as trustee of the defendant, filed an answer, admitting funds in his hands belonging to the defendant, and setting up a previous assignment of the funds by the defendant to Charles H. Williams.

<p>Petition to the Superior Court for a writ of review of an action brought by the respondents against the petitioner, returnable at October term 1874. At the hearing, before Pitman, J., the following facts appeared:</p> <p>Before the entry of the action, the petitioner filed a bond to dissolve the attachment which was made more than four months before his bankruptcy. Before the case was reached for trial, the petitioner was adjudicated a bankrupt, and suggested his bankruptcy on the docket. When the case was reached for trial, the petitioner was defaulted and judgment rendered against him in January, 1875. At April term 1875, the petitioner applied to the court to have the judgment vacated and the execution returned, which the court ordered to be done upon the petitioner’s filing a bond in compliance with the St. of 1875, e. 68, which took effect on April 22, 1875, and the petitioner filed the bond. Afterward, the execution was returned, the judgment vacated and the action brought forward on the docket and put on the trial list again, for January term 1876, by the first named respondent, without the knowledge of the petitioner.</p> <p>In December, 1875, the respondents filed objections to the petitioner’s obtaining his discharge in bankruptcy, which he was attempting with due diligencé to obtain, and a hearing was had upon such objections a few days before the case was reached for trial at January term 1876; and, while the matter of discharge was pending in the bankruptcy court, the case was defaulted in the Superior Court, and judgment rendered for the respondents without the knowledge of the petitioner, who filed this petition as soon as he knew thereof. On February 12, 1877, the court, at a hearing thereon, ordered the supersedeas granted on the petition to be vacated, unless the petitioner forthwith filed a new bond in compliance with the St. of 1875, e. 68, which bond the petitioner immediately filed, claiming to except to the order. This review is sought solely for the purpose of enabling the petitioner to plead his discharge in bankruptcy, since obtained.</p> <p>The judge, without considering the merits of the petition, ordered it to be dismissed on the ground that, under the provisions of the St. of 1875, c. 68, §§ 2, 3, 4, no substantial benefit could, in any case, accrue to the petitioner by a review under the facts admitted. The petitioner alleged exceptions.</p>

Contract, against the executrix of Henry W. Cushing, on the following bond, executed by the obligors : “ Know all men by these presents, that we, Charles W. Cochrane, of Chelsea, in the county of Suffolk and Commonwealth of Massachusetts, as principal, and Henry W. Cushing, of Boston, in the county of Suffolk, aforesaid, as surety, are holden and stand firmly bound and obliged unto Alice C. Cochrane, of said Chelsea, widow, in the full and just sum of f1000, to be paid unto…

<p>4 petition, filed November 9, 1877, to prove exceptions, set forth that a bill of exceptions was duly filed with the clerk and presented to the judge, and that it was agreed that the bill should be allowed as filed, with certain modifications; that the exceptions had been otherwise changed by the judge, of which the petitioner and his counsel first had notice on October 22, 1877. It appeared that the bill of exceptions, as allowed, was filed by the judge on July 3, 1877, and that on August 13, 1877, the clerk sent a note to the petitioner’s counsel, asking if the papers in the case should be prepared for this court, which the counsel answered in the affirmative. Held, that this was notice of the contents of the bill as filed, and that the petition was too late, under the 28th rule of this court, requiring a party, seeking to establish the truth of any allegations in a bill of exceptions, which a judge shall have refused to allow, to file his petition “ within twenty days after notice oí such refusal.”</p> <p>In an action for the conversion of a wallet, there was evidence that the plaintiff called at the defendant’s dye-house, and transacted some business with the clerk in charge in reference to dyeing certain goods, and casually left the wallet on the counter; that the clerk in charge and another clerk took the wallet and placed it in the cash drawer; that the money taken through the day was, at the close of business, sent by the clerk in charge to the defendant; that the following week the clerk in charge told the defendant of the leaving of the wallet, the placing it in the cash drawer, of its disappearance, and that he did not know what had become of it, whereupon the defendant told him to notify the plaintiff, which he did. The judge, among other instructions not objected to, instructed the jury, against the plaintiff’s exception, that “ if the defendant employed the clerks only to receive and take charge of packages for the dye-house, and to return them and receive pay for work done on them, and the plaintiff accidentally left her pocket-book on the cou iter, and the clerks found it and put it in the money-drawer of the defendant, and it was taken therefrom before the defendant knew or was informed of the transaction, the clerks were not so acting within the scope of their employment as to make the defendant responsible for the loss.” Held, that it could not be said that there was no evidence from which the jury might find that the authority of the clerks was limited as supposed in that instruction, and, if it was so limited, the instruction was correct.</p>

<p>Contract, by a real-estate broker, to recover a commission on the sale of a lot of land in Cambridge to the defendant.</p> <p>At the trial in the Superior Court, the plaintiff testified that the defendant’s husband called his attention to the lot in November, 1875, and said he would like to have him undertake to sell it; that on December 20, 1875, the defendant came to his office and repeated the request, and agreed to pay him the commission sued for, if he got $7200; that he told her he knew of a man who was looking for a lot, gave the man’s name, and agreed to go, and did go, to see him, and told him where the lot was and who owned it, and its price; that the man said he thought the lot would do, and would go and look at it.</p> <p>There was also evidence that the man to whom the plaintiff went did not go to see the land, but bought it for $7200 through another broker on January 1,1877, on his wife’s looking at it and being satisfied with it.</p> <p>At the request of the defendant, Putnam, J., ruled that the plaintiff could not, upon the evidence, maintain the action ; directed a verdict for the defendant; and reported the case for the consideration of this court. If the ruling was correct, judgment was to be entered on the verdict; otherwise, a new trial to be ordered.</p>

<p>Under the Gen. Sts. c. 129, § 64, the judgment of a justice of this court upon demurrer in an action at law is not subject to appeal, and can only he revised on bill of exceptions or report.</p>

<p>Bill in equity by the executors of and trustees under the will of Samuel A. Way, to obtain the instructions of the court. Hearing before Endicott, J., who reserved the case for the consideration of the full court. The facts appear in the opinion.</p>

Contract on an account annexed. The writ, dated March 23, 1875, and returnable to the Superior Court, was against the defendant personally. On February 27, 1877, Gardner, J., allowed the plaintiff to amend the writ so as to charge the defendant as administrator of John C. Tucker, the defendant objecting to the amendment on the ground that he, as administrator, had rendered his final account and fully administered on the estate. The defendant alleged exceptions.

<p>A petition to establish the truth of exceptions alleged that the time for the filing and presentment of the exceptions was extended by the presiding judge to a cer tain day (which was Saturday)j that on that day the bill of exceptions was handed to the respondent’s attorney, who orally agreed that the time for filing them should be extended to the following Monday, and that he would look them over and return them on Monday to the petitioner’s attorney; that a few minutes before two o’clock on Saturday afternoon he rescinded that agreement, returned the exceptions to the petitioner’s attorney, and insisted upon their being filed at once; that the petitioner’s attorney forthwith filed them in the clerk’s office, but did not present them to the judge until Monday morning, because he was unable to ascertain where he could be found; and that the judge refused to allow them, because not presented to him within the time prescribed by law. Held, that the alleged agreement of counsel, not being in writing, as required by the Gen. Sts. c. 129, § 60, was invalid; that the exceptions, not having been presented to the judge, as well as filed with the clerk, within the time limited by the judge’s order, were rightly dis allowed; and that the petition must be dismissed.</p>

Bill in equity against the Boston and Albany Railroad Company, and Henry K. Oliver and others, commissioners of the sinking fund of the Western Railroad Corporation, to redeem three adjoining parcels of land in Boston from certain mortgages, and for an account.

<p>If land, mortgaged to secure a promissory note, is sold under a power contained in the mortgage, and brings less than the amount of the note, an action may be maintained on the note for the balance due.</p> <p>A mortgagee of land, upon breach of condition, sold the land under a power contained in the mortgage, literally complying with the terms thereof. The advertisement of sale set forth that the terms of sale would be stated at the time of the sale; and at the sale the terms were stated to be $500 down, and the balance in ten days. The estate was bid off by a person who was requested by the mortgagor to run up the estate for him, and he not having $500 with him to pay, and not asking for any delay, the estate was put up again and sold for a less sum than was previously bid. The mortgagee had notified the mortgagor that the estate would be sold, and the mortgagor was present at the sale, and made no objection thereto. Held, that no evidence of fraud appeared on the part of the mortgagee, or of any omission on his part to use a reasonable degree of diligence to protect the interests of the mortgagor.</p> <p>Mere inadequacy of price is not sufficient to avoid a sale made under a power contained in a mortgage.</p>

Contract for breach of an agreement to pay a mortgage existing upon an estate conveyed by the plaintiff to the defendant. Trial in this court, without a jury, before Soule, J., who allowed a bill of exceptions in substance as follows : The plaintiff, by his deed dated July 31, 1872, conveyed to the defendant a parcel of land.in Boston.

<p>A. bought of B. an undivided half of an estate subject to a mortgage, and in payment therefor assumed one half of the mortgage, conveyed other land to B., and gave his note for a certain sum, secured by a mortgage on the purchased half, subject to the first mortgage. A. afterwards sold his interest to C., who, as part of the consideration, assumed the one half of the first and the whole of the second mortgage. B. then brought an action against A. on his note, and, while the action was pending, C., as owner of an undivided half, a grantee of B. as the owner of an undivided quarter, and B., who still owned the remaining quarter, conveyed for full value a portion of the estate, by metes and bounds, B., who held the second mortgage, and his wife, as assignee of the first mortgage, executing releases of the portion conveyed. The proceeds of the sale, after deducting taxes due and other charges, were paid on the first mortgage. While the sale was pending, B. informed A, of it, told him what portion they proposed to convey, and the price, to which A, who was a real-estate broker, and fully acquainted with the value of the whole parcel and of the portions to be sold, replied “ that it was none of his business, that the land belonged to C., that he could not give a deed of it, but that he thought it was a very good sale, and had better be completed as soon as possible.” Held, that A. could not maintain a bill in equity to stay the action at law against him on the note.</p>

Contract, against Francis Hunnewell and John L. Hunnewell, on a recognizance entered into under the Gen. Sts. e. 124, § 10, by the first named defendant as principal, and the other as surety, and conditioned that Francis Hunnewell, who had been arrested on an execution in favor of the plaintiff, should, within thirty days from the time of his arrest, deliver himself up for examination before some magistrate authorized to act, giving notice of the time and place thereof in…

<p>Contract. The declaration contained two counts. The first count was upon the covenant against incumbrances contained in the defendant’s deed to the plaintiff, delivered June 12, 1874, of a parcel of land in Cambridge; and alleged that the plaintiff had been obliged to pay an assessment for filling in the land, levied by the mayor and aldermen of Cambridge under the St. of 1872, e. 299; and which was a lien on the land when the deed was made. The second count alleged that the defendant, in consideration of the purchase of the land by the plaintiff, orally promised to pay any assessment that might be laid upon q the land on account of any filling or grading in process at the time the plaintiff bought the land.</p> <p>At the trial in the Superior Court before Allen, J., without a jury, the plaintiff offered in evidence, under the first count, an attested copy of an order of the mayor and aldermen, dated October 9,1872, requiring the owners of land in a certain district within which was the land sold, to fill in their lands to a specified grade; also a copy of the order making the assessment dated April 19,1876, and a bill of the amount assessed on the land sold, which the plaintiff paid.</p> <p>The defendant asked the judge to rule that §§ 4, 5, 8 of the St. of 1872, o. 299, were unconstitutional, and that the assessment was invalid on account of certain alleged irregularities in the proceedings, which it is not necessary now to state in detail, The judge refused to give the rulings requested.</p> <p>Under the second count the evidence in behalf of the plaintiff was as follows: The plaintiff testified that he said to the defendant, “You have to pay for the filling in;” that the defendant said, “ There is no filling, or very little; ” that the plaintiff said, “ There is some; ” and the defendant replied, “All right, I will pay it.” • The plaintiff’s wife testified that the defendant said he would pay for the filling; that he would pay the assessments or bills when they came in from the city; that she held the money, the price for the land, and would not pay it over until he said this. Both the plaintiff and his wife testified that this conversation occurred at their lawyer’s office, at the interview when the deed was delivered, and just before it was delivered, and that the deed was read to them. The plaintiff’s attorney, who took the acknowledgment of the deed, testified that he was present, recollected some such conversation, and that he told them the deed would probably bind Cheevers any way.</p> <p>The judge ruled that the evidence was sufficient to prove an independent separate promise, not included in the deed, and found for the plaintiff. The defendant alleged exceptions.</p>

Trustee process. The writ, as originally sued out, was against James H. Langley and James F. Alderman, as principal defendants, and the… Held: was competent as having a bearing on the question whether the assignment to them was valid, or was intended to cover up the fund in the bank, and prevent its being held by the plaintiff; and that the knowledge of these facts by Richardson and Browne might be considered by the jury, in connection with other evidence in the case, in…

<p>Tort by the administratrix of the estate of Dennis Fay, for injuries received by him while in the employ of the defendant.</p> <p>Trial in this court, at September term 1877, before Lord, J., who allowed a bill of exceptions in substance as follows:</p> <p>The defendant was erecting a large building in Boston, the walls and outer foundations of which were laid in a trench dug for that purpose. Across these walls were two girders, fifty feet long, upon which the beams and floor rested. Each girder was temporarily sustained by four posts. The plaintiff’s intestate was employed by the defendant to dig holes in the vicinity of these temporary posts, in which brick piers were to be laid. Two of these holes had been dug two days before the accident. On December 3, 1874, the plaintiff’s intestate was employed to dig near the third post, and one Dolan to do the same near the fourth. While the men were at work the girder fell, causing the injuries complained of.</p> <p>The defendant testified that he marked on the ground where Fay was to dig, and instructed him how to dig; that the first two holes were dug according to his direction; that, on the morning of the accident, he was in' and out where Fay was at work, every few minutes, and that he saw Fay digging too near the post, and called out to him, but he did not appear to hear; and that he then went towards him, and that, as he was approaching, he saw Fay strike with his shovel against the plank on which the post rested, and, as he did so, the girder and beams came down.</p> <p>In May, 1875, the following interrogatories to the defendant were filed, and answers made by him :</p> <p>Ques. “1. In the month of December, 1874, or about that time, was the plaintiff’s intestate, Dennis Fay, in your employ ? If so, state how long, in what capacity, and when did he leave it?”</p> <p>Ans. “ He was in my employ for about two days, as a laborer, in digging out places for brick supports for a floor of my building. He left my employ about December 3.”</p> <p>Ques. “2. Was he injured while at work in your service, in one of your buildings, by the fall of a floor, or of lumber, or by other means, on his person; if so, at about what time ? ”</p> <p>Jiras. “ He was injured by the fall of a part of floor, while in my service, about December 3, between ten and eleven in the morning.”</p> <p>Ques. “ 3. Who had the direction and supervision of work in which Fay was engaged at the time of receiving the injury? Who employed and paid him ? ”</p> <p>Ans. “ I did.”</p> <p>The plaintiff’s counsel, in his closing argument to the jury, read these interrogatories and answers, and argued that the defendant, in his third answer, said, or intended to say, that Fay, at the time of the accident, was following the direction of the defendant, and that consequently be could not be charged with negligence.</p> <p>In his charge to the jury, the presiding judge said, in sub stance: “ It has been argued by counsel that, from the third in terrogatory and answer, the mode of doing the work was under the defendant’s direction. The true construction of that interrogatory and answer is not that the specific things' done by the plaintiff’s intestate were done in the mode prescribed by the defendant, but that the work which the plaintiff’s intestate was doing, at the time the injury was sustained, was done under the direction and supervision of the defendant.”</p> <p>The jury returned a verdict for the defendant; and the plaintiff alleged exceptions.</p>

<p>Writ of entry to recover a parcel of land in Malden, being the parcel between Salem Street and the most northerly dotted line as shown on the following plan:</p> <p> </p> <p>Plea, nul disseisin, and a disclaimer of title, which was accepted, as to so much of the parcel as lies between Salem Street and the southerly dotted line, leaving the parcel between the dotted lines in dispute.</p> <p>Trial in the Superior Court, before Pitman, J., who allowed a bill of exceptions, in substance as follows:</p> <p>The demandant put in evidence a deed of Ezra Holden to the tenant, dated May 7, 1829; also a deed of the tenant to Sarah A. Wentworth, dated December 20, 1873, through whom, by various mesne conveyances, the demandant claimed title.</p> <p>In the deed of Holden to the tenant, the premises conveyed were described as follows: “ A certain piece of land containing one fourth of an acre, be the same more or less, bounded southerly on the road leading from Medford to Lynn [now Salem Street] ; westerly by land of William Wait, 3d; northerly by land of Deacon Samuel Wait; and easterly by land of me, the said Ezra Holden, beginning at a stake on the north line, fifty feet from land of said Wm. Wait, 3d; thence running southwardly to the centre of the house on the back part of the house; thence southerly through the centre of the house to the road aforesaid, reserving to myself, however, the bedroom in front of the house, extending over said line, and conveying to said Lovett the bedroom in back part of said house.” It was not contended that there was any uncertainty as to the premises conveyed by this deed.</p> <p>The deed of the tenant to Wentworth described the premises conveyed as follows: “A certain piece or parcel of land, with the buildings thereon, situated in said Malden, bounded, beginning at the southwest corner of said land on Salem Street, by land of J. R. Atwood and others; thence running northerly by land of said Atwood and others to land of said Lovett; thence easterly by said Lovett’s land to land of C. A. Maiers and others; thence southerly by the last named land to the back part of the house; thence southerly through the centre of said house to Salem Street; thence westerly by Salem Street to the point of beginning, containing eight thousand square feet, more or less. Being the same premises conveyed to me by Ezra Holden, by deed dated May 7, 1829, recorded with Middlesex deeds, book 315, page 120.”</p> <p>It was admitted that the plan correctly represents the abutters at the time the tenant conveyed to Wentworth, and the contents of the premises mentioned thereon; and that, at the date of the deed of the tenant to Wentworth, he was and had been since 1833, by several mesne conveyances, the owner of the lot of land forming the northerly boundáry of the demanded premises, and formerly owned by Deacon Samuel Wait.</p> <p>Upon the foregoing facts and documentary evidence, the tenant contended that there was such doubt and uncertainty as to where the northerly line was of the premises, intended to be conveyed by the deed to Wentworth, as to let in oral evidence to determine that line; and the tenant offered and was allowed to prove, the demandant objecting, the practical construction of the deed as to that line, given by the parties subsequently to the conveyance, by their acts and their treatment of the property in dispute ; that the tenant had, ever since said conveyance, used and occupied the premises, collecting the rents, paying the taxes, and treating it as his own the same as before, without objection by anybody; that Wentworth, at the time of the conveyance to her, was living in the southerly house indicated on the plan, as a tenant of Lovett, and continued to live there for some two years after the conveyance.</p> <p>The demandant contended that there was no uncertainty as to the premises intended to be conveyed by the deed of Lovett; that, by its terms and its reference to the deed of Holden, the same premises were conveyed to Wentworth that were conveyed by the deed of Holden to Lovett, and that Lovett was estopped to deny that his deed conveyed the land to Wentworth up to the land formerly of Deacon Samuel Wait; but the judge refused so to rule.</p> <p>The jury returned a verdict for the tenant; and the demand-ant alleged exceptions.</p>

Contract on an account annexed to recover for the board of six men at the plaintiff’s hotel. Trial in the Superior Court, before Gardner, J., who, after a verdict for the plaintiff, reported the evidence for the consideration of this court; if upon the evidence the action could be maintained, judgment was to be entered on the verdict; otherwise, judgment was to be entered for the defendant. The nature of the evidence appears in the opinion.

<p>Tort to recover a forfeiture of $100, under the St. of 1875, e. 99, § 15, for selling intoxicating liquor to John Roberge, a minor son of the plaintiff. At the trial in the Superior Court, before Pitman, J., the jury returned a verdict for the plaintiff; and the defendant alleged exceptions, the material parts of which appear in the opinion.</p>

Contract, upon the following order: “ Lowell, February 3d, 1875. Mr. Blodgett, please pay to C. H. Robbins the sum of four hundred and forty-five dollars, and oblige — to be paid when the house is finished— J. T. Willis.” Across the face of the order was written, “I accept the order. Chas. A. Blodgett.” Writ dated March 13, 1877.

<p>In an action against a city to recover for personal injuries occasioned by a defect in a street alleged to be “ opened and dedicated to the public use,” evidence that the street ran from a public street to another street, in regard to which there was no evidence that it was public; that the defect, consisting of a pile of snow and ice, was situated about thirty yards from the public street; that there were only four houses Oon the street; and that one witness saw the pile of snow and ice in the morning, about twelve hours before the accident occurred, is not sufficient to warrant a finding that the city had reasonable notice of the defect.</p>

Tort for assault and battery. The answer merely denied each and every averment in the writ and declaration.

“Contract under the Gen. Sts. c. 70, § 16, upon an account v: vexed, for medical attendance and medicines furnished Jacob Reed, a pauper, in the defendant town. Trial in the Superior Court, without a jury, before Pitman, J., who found the following facts: Ihe plaintiff was a physician, and was called to attend Reed, who was a pauper, and in actual distress in the defendant town, needing immediate medical attendance.

Tort for personal injuries occasioned by a defect in a highway which the defendant town was bound to keep in repair. Trial in the Superior Court, before Brigham, C. J., who, after a verdict for the plaintiff, allowed a bill of exceptions, so much of which as is necessary to the understanding of the point decided appears in the opinion.

<p>Tort for the conversion of a buggy and harness. Writ dated February 17, 1877. At the trial in the Superior Court, before Wilkinson, J., there was evidence tending to show that the plaintiff, a deputy sheriff, duly attached, on January 2, 1877, the buggy and harness, on a writ in favor of William W. Bessey against Joshua Perham, who was then the owner of the property; that on January 11, 1877, after proper proceedings, the plaintiff sold, on said writ, the property to William W. Bessey, at public auction, he being the highest bidder therefor, to be delivered to him when paid for; that the defendant, who was also a deputy sheriff, on January 27,1877, attached and took the buggy and harness as the property of Bessey, on a writ against him, which was the conversion complained of; that the property had not, at the time of the taking by the defendant, been paid for by Bessey, nor delivered to him, nor had it been resold by the plaintiff.</p> <p>The defendant contended that, as the plaintiff had neglected n resell the property within ten days, as required by the Gen. Sts. c. 133, § 38, he had a right to attach it as the property of Bessey, and asked the judge so to instruct the jury. The judge refused to give this instruction, directed a verdict for the plaintiff ; and, at the request of the defendant, reported the case for the determination of this court, on the question whether the instruction requested should have been given. 0</p>

<p>Contract on three promissory notes, two for $'3000 each, and the third for $1940, all dated January 1, 1868, payable to the order of the plaintiff, and purporting to be signed by the defendant. Each note was indorsed, “Interest paid to July 1, 1872.” Writ lated April 1, 1874.</p> <p>At the trial in the Superior Court, before Brigham, C. J., the jury returned a verdict for the defendant; and the plaintiff tendered a bill of exceptions, in substance as follows:</p> <p>The defendant admitted that he made the notes in suit, together with another of the same tenor for three thousand dollars, and that he wrote the indorsement above mentioned on each of them.</p> <p>It appeared that the plaintiff for several years had had dealings with the firm of F. & F. Rice & Co., of Boston, which dealings ceased on July 1, 1872, at which time the firm was indebted to the plaintiff in the sum of twelve thousand dollars. The plaintiff introduced evidence tending to show that the notes in suit were made and delivered to him by the defendant in October, 1872, at the time when the defendant made a reconveyance of certain real and personal property to the plaintiff, (which had, earlier in 1872, been conveyed to the defendant by the plaintiff, the same being the plaintiff’s homestead estate, and the furniture, &c., at the same,) and that the plaintiff and defendant accounted together as to the indebtedness of the one to the other in payment of the balance of the firm’s indebtedness to the plaintiff, a part of the same having previously been paid by the defendant, and that interest had been paid on the notes according to their tenor, up to and including January 1, 1872.</p> <p>The defendant introduced evidence tending to show that the notes in suit were made and delivered by him to the plaintiff about the time (September, 1872) the plaintiff made and delivered to the defendant a valid conveyance of certain real and personal property, heretofore mentioned, and possession thereof, without any consideration therefor; that the plaintiff asked the defendant then to make the notes in suit and deliver them to the plaintiff, so he could show them to prove he had not given away his place, and that thereupon the defendant did make the notes m suit and deliver them to the plaintiff; that in October, 1872, as the result of various conversations between the plaintiff and the defendant, the defendant reconveyed said real and personal property as hereinbefore mentioned; and that at the same time the plaintiff said to the defendant that he would deliver the notes to him, but that they were then mislaid and he could not find them.</p> <p>The defendant also introduced evidence tending to show that the firm’s indebtedness was settled by the firm making and delivering to the plaintiff, on July 1, 1870, four notes of that date for three thousand dollars each, payable to the order of the plaintiff ; that the plaintiff had these notes in his possession from that date until April 6,1871, when the plaintiff, at his homestead in Stowe, in this Commonwealth, handed them to the defendant voluntarily as a gift, the plaintiff saying at the time he wished the defendant to pay the plaintiff interest on the same until the plaintiff’s death; that the defendant took them, has held them since, and did pay interest on them up to and including January 1, 1874, but has paid no interest, nor offered to, on them since. The defendant produced these notes of July 1,1870, at the trial, and it appeared that they were in the handwriting of the defendant ; that neither of them had been indorsed,' or in any way assigned, by the plaintiff at any time.</p> <p>The plaintiff introduced evidence tending to show that these notes of July 1, 1870, if ever made as alleged by the defendant, had never been in the plaintiff’s possession, but in the possession of the defendant ever since they were made. The plaintiff testified that when Freeman and Franklin Rice died the firm owed him twelve thousand dollars; that he never had the firm’s notes in his possession, but they were kept at Boston by the firm for him; that he never gave them to the defendant, and denied the conversation testified to by the defendant and his wife in relation to the gift of those notes to the defendant. On cross-examination, he admitted that an indorsement of interest upon the firm notes was in his handwriting; that he made a gift by deed of land to George, one of his nephews, and took back an obligation to pay interest; that he had given up the notes of Freeman and Franklin Rice, taking back an obligation for the payment of interest; and the notes and obligations, being produced by the defendant, were identified by the plaintiff as the originals. The defendant then offered certain instruments in evidence, which were objected to by the plaintiff, but they were admitted by the judge, subject to the plaintiff’s exception. Each of these instruments was a bond, executed to Elijah Hale by Franklin Eice and Freeman Eice, in the sum of $4000, dated January 1, 3849. Thy condition of each recited that Hale had given up to the obligors two notes of hand of $2000 each, the interest being paid up to date, and stated that if the obligors should jointly and severally pay to the obligee, during his lifetime, $120 every six months, the obligation should be void; otherwise, to remain in full force.</p> <p>It appeared that the Franklin Eice and Freeman Eice named in said paper were brothers of the defendant, and that all of them were nephews of the deceased wife of the plaintiff.</p> <p>The plaintiff requested the judge to instruct the jury as follows: “If the jury find that the notes dated July 1, 1870, they being payable to the order of the plaintiff, were handed to the defendant by the plaintiff, and that the defendant took them into his possession, but that the plaintiff did not then, or at a later time, indorse, or in any way assign said notes, then the gift was not perfect.” The judge refused to so instruct the jury, but did instruct them that the facts that the notes alleged to be bestowed upon the defendant by the plaintiff as a gift were payable to the plaintiff’s order, and did not appear to have been indorsed by him, or assigned in writing to the defendant, were not conclusive evidence that they were not bestowed on the defendant as a gift, neither was such indorsement or assignment an act essential to constitute a gift of such notes, although facts which might be considered by the jury in determining whether there was a gift of these notes, as alleged by the defendant, or whether such formal acts would have been natural and probable between the parties. To this refusal and ruling by the judge the plaintiff excepted.</p> <p>The defendant requested the judge to instruct the jury “ that if the jury find that the Franklin and Freeman Eice notes of July 1,1870, were given to the defendant, as testified to by him, and if they also find that the notes in suit were given for the same debt, or as evidence of a renewal of the old liability once discharged, then the notes in suit were without consideration.” The court gave the instruction, and the plaintiff excepted.</p> <p>The jury found for the defendant, and the plaintiff, being aggrieved by said rulings, instructions and refusals to rule and instruct, asks that his exceptions may be allowed.</p> <p>On January 14, 1876, Brigham, O. J., overruled a motion to set aside the verdict, and made and signed upon the bill of exceptions a certificate consisting of the single word “ Allowed,” and restored the exceptions to the files of the Superior Court. On the same day, the exceptions were entered in this court, and were afterwards continued to this term.</p> <p>On January 9, 1877, the defendant moved this court to dismiss the exceptions, for the following reasons:</p> <p>1. Because the time for filing the exceptions was extended for a longer time than the statute allows, without the consent of the adverse party, and no such consent was given.</p> <p>2. Because no notice was given to the defendant that the exceptions had been filed.</p> <p>3. Because the exceptions were not returned to the files of the court within the time required by the Gen. Sts. a. 115, § 8. Nor were they entered at any time subsequently, with any certificate of the judge required by said section.</p> <p>The entries upon the docket of the Superior Court of March term 1875 were as follows: “ 1875. March term. April 13th. Verdict for defendant; time .for filing exceptions extended to April 20th. April 17. Motion to set aside verdict. April 20. Time for filing exceptions extended to May 1. May 1. Plaintiff’s exceptions filed. May 24. Continued nisi for motion and exceptions.”</p>

Contract upon three promissory notes for $1000 each, dated respectively October 11, 1869, June 1, 1870, and January 27, 1871, payable to the order of the plaintiff and signed by the defendants as copartners under the name of Royal Gilkey & Co. The defendant Gilkey (the other defendant having been defaulted) filed an answer setting up a composition in bankruptcy with his creditors, including the plaintiff, under the U. S. St. oí June 22, 1874, § 17, and a tender of the amount…

<p>Contbact for breach of an agreement to pay a certain mortgage and mortgage note subsisting upon an estate conveyed by the plaintiff to the defendant. Writ dated November 15,1875. At the trial in the Superior Court, before Brigham, C. J., the following facts appeared:</p> <p>On April 2, 1875, the plaintiff executed and delivered to the defendant a deed of certain land in Chelsea, containing the following clause: “ Being the same premises conveyed to me by George W. Gerrish by deed dated January 2d, 1874, and recorded with Suffolk deeds, book 1201, page 300. The granted premises are hereby conveyed, subject to a mortgage given by said Gerrish to James M. Shaw, recorded with Suffolk deeds, book 1195, page 2, upon which there is now due of the principal the sum of fifteen hundred dollars, and also a mortgage given by me to Lucy C. Elliott, recorded as aforesaid, book 1228, page 65, upon which there is now due of the principal the sum of six hundred dollars, both of which mortgages and the notes secured thereby, and interest thereon, the said grantee by the acceptance of this deed assumes and agrees to pay, and save me and my legal representatives forever harmless therefrom, the same forming part of the consideration of this deed.”</p> <p>Contemporaneously with the execution and delivery of this deed, the defendant made an agreement in writing, under seal, with the plaintiff, to save the plaintiff harmless from certain promissory notes, amounting in all to $802. The instrument also contained the following clause: “And I, said S. D. Hicks, further covenant and agree with said Gaffney that at any time within one year from the date hereof, upon receipt of eight hundred and two dollars, I will convey to said Gaffney, his heirs or assigns, by a good and sufficient deed conveying an estate in fee simple, a certain lot of land with the buildings thereon, and all the privileges and appurtenances thereto belonging, situate in Chelsea, and described in a deed thereof from George W. Gerrish to said Gaffney, dated January 2, 1874, recorded with Suffolk deeds, book 1201, page 300, free from all incumbrances, excepting two mortgages the principal sums of which amount to twenty-one hundred dollars, and are named in a deed of said premises from said Gaffney to said Hicks from date hereunto.”</p> <p>On September 14, 1875, the premises in question were sold under a power of sale contained in the mortgage deed to Lucy C. Elliott, and the net proceeds of the sale were $100. The plaintiff never paid the notes mentioned in the defendant’s agreement.</p> <p>The defendant contended that, upon the facts, the plaintiff could not maintain his action, and that, if he could maintain it at all, he could not until the expiration of the term mentioned in the agreement; but the judge ruled that the plaintiff was entitled to recover the sum due to Lucy C. Elliott, less the net proceeds of the sale of the premises, and ordered judgment for the plaintiff for that sum. The defendant alleged exceptions.</p>

Bill in equity, inserted in an original writ of summons and attachment, dated November 4, 1869, for the settlement of the affairs of a partnership. Hearing upon the pleadings, a master’s report and the defendant’s exceptions thereto, before Lord, J., who reserved the case for the consideration of the full court. The material facts appear in the opinion.

Writ or ENTRY, dated February 23, 1877, to recover a parcel of land in Eastham. Plea, nul disseisin, with a disclaimer of title to the demanded premises. The demandants filed the following replication: “ And now come the demandants in the above entitled action, and deny each and every allegation in the tenant’s plea contained.

Contract ■ against N. B. Haynes, doing business under the name of N. B. Haynes & Co., for goods sold and delivered. Writ dated October 31, 1874. Augustus J. Richards, surviving partner of the firm of Joseph Loud & Company, summoned as trustee, answered, admitting funds in his hands to the amount of $805.34. The Mechanics’ National Bank of Peoria, in the State of Illinois, appeared as adverse claimant of the funds in the hands of the trustee.

<p>A testator, by his will, devised to his brother "the dwelling-house and stable which my said brother now occupies, and the lot of land on which said house and stable stand.” In a writ of entry brought by the brother against the residuary devisee under the will, it appeared that the demanded premises, upon which stood a building used for a market, consisted of a portion of a tract of land, upon the rest of which stood the dwelling-house and stable mentioned in the will; that there was a passageway between the market and dwelling-house, used in common by the occupants of each; that the dwelling-house, stable and land, with the exception of a strip about the market, had been in the exclusive occupation of the demandant without payment of rent since 1853; and that for nearly the same time the market had been in the occupation of lessees of the testator and tenant. The judge admitted, against the demandant’s exception, the testimony of the scrivener of the will, who testified that the testator, at the time of drawing the will, described the land occupied by the dwelling-house and market as separate pieces of property; and also admitted in evidence certain conveyances by the testator of the entire tract, describing it as land with a “ dwelling-house and shop thereon,” the term “ shop ” referring to the “ market; ” and found for the tenant. Held, that only the land, which had been used as parcel of the estate occupied as a dwelling-house and stable, passed by the will to the demandant, and that the evidence was properly admitted to identify the subject matter of the devise.</p>

<p>On the trial of a complaint on the Gen. Sts. c. 87, §§ 6, 7, for maintaining a tenement, “used for the illegal sale and illegal keeping of intoxicating liquors,” the testimony of a witness for the government that he saw a license from the United States, authorizing the defendant to sell liquor, hanging upon the wall of the defendant’s har-room, is competent.</p>

Indictment on the Gen. Sts. c. 87, §§ 6, 7, charging the defendant on September 1, 1877, and on divers other days between that day and the day of the finding of the indictment, December 4, 1877, with keeping and maintaining a certain tenement in Hyde Park, used for the illegal sale and illegal keeping of intoxicating liquors, the same being a common nuisance.

Complaint under the St. of 1875, o. 99, § 6, el. 4, charging a sale of intoxicating liquor to Robert E. Devine, a minor, on May 30, 1877.

<p>A person, who fraudulently obtains possession of the property of another, with intent at the time he receives it to convert it to his own use, the owner intending to part with his possession merely and not with his title to the property, is guilty of larceny.</p> <p>On a complaint for the larceny of a twenty-dollar bill, alleged to be the property of A., there was evidence that as A. was passing a bar-room, the defendant, a girl, called him in, and he, at her request, gave her money to buy a bottle of brandy ; that they went np-stairs together, and she said this bottle would not be enough for the night, and asked for Inore money to buy another bottle; that he thereupon gave her a twenty-dollar bill to get a quart of brandy, the price of which was three dollars, not expecting to receive the bill back, but the change, after deducting the price of the brandy; that the defendant went out and soon returned with another girl, saying she could not get it; that the other girl said she knew where to get it, and the two girls went out and he saw no more of them or his money. Held that, on this evidence, the jury would be warranted in finding the defendant guilty of larceny</p>

Indictment on the Gen. Sts. c. 162, §§ 1, 2, in two counts. The first count charged that the defendant “ did falsely make, alter, forge and counterfeit a certain indorsement in and upon a certain promissory note for the payment of money, said note purporting to be made by said Spilman payable to one T. W. Atherton, which said note is to the substance and purport following, that is to say: ‘Boston, April 1st, 1876. $2000.

Bill in equity, filed March 28, 1877, against Ellen Herbert, the Taunton Savings Bank, Michael J. Barnes and Samuel D. Howland. The defendants demurred to the bill for want of equity. Endicott, J., sustained the demurrer, and ordered that the bill be dismissed. The plaintiff appealed to the full court. The facts appear in the opinion.

<p>Bill hi equity to redeem land in Lawrence from two mortgages. Hearing upon the pleadings, a master’s report and exceptions thereto, and certain motions of the defendant, before Endioott, J., who overruled the motions and the exceptions, and directed a decree to be entered that a certain sum was due the defendant on May 1, 1876, as found by the master, and that the case should stand for further proceedings to determine the rents and profits since May 1,1876; and, at the request of the defendant, reserved the case for the consideration of the full court. If the rulings and order for a decree were correct, a decree was to be entered in conformity with the order; otherwise, the case to take such direction as the court should order. So much of the case as is necessary to the understanding of the points decided appears in the opinion.</p>

<p>Tort, with a count for libel, and others for slander. After the former decision, reported 121 Mass. 522, the case was tried in this court, before Soule, J., who, after a verdict for the defendant, allowed a bill of exceptions, the substance of which appears in the opinion.</p>

<p>Bill in equity, filed May 18, 1877, and alleging the following facts: On May 27, 1874, Joseph F. Paul, the owner of a certain estate on Dartmouth Street, in Boston, conveyed it to one Rich, and on November 10, 1875, the plaintiff, by various mesne conveyances, became the owner of the estate. On May 1, 1874, a tax was assessed on the estate to Paul by the city of Boston, to the amount of $365.04. On September 7, 1874, the warrant, for the collection of the taxes assessed by the city of Boston for the year 1874, was committed, by manual delivery, to Frederick U. Tracy, then the collector of the city, who died on January 14, 1875. On August 9, 1875, Thomas Sherwin was appointed collector to fill the vacancy, and thereafter a new warrant for the collection of the taxes, so assessed and remaining unpaid, was delivered to Sherwin. On September 4, 11, 18, 1876, Sherwin advertised the estate for sale by public auction for non-payment of such tax, and on September 28,1876, sold it to the defendant for the amount of such tax, interest and charges, and on September 30, 1876, conveyed the estate to the defendant by a deed" which was recorded on October 7, 1876.</p> <p>The bill also alleged that the plaintiff did not know, until after October 7, 1876, that the tax so assessed was unpaid, that the collector had so advertised or made or intended to make such sale, and had no notice thereof, but believed that the tax was paid when the estate was conveyed to him; that the deed to the defendant constituted a cloud upon the defendant’s title, and that the plaintiff had requested the defendant to release to him the apparent title so obtained from the collector, but the defendant refused, and contended that he had obtained a title under his deed which was indefeasible, except by redemption.</p> <p>The prayer of the bill was that the defendant might be compelled to execute to the plaintiff a release of all the title and estate acquired by him under the collector’s deed, and for general relief. The defendant demurred to the bill for want of equity.</p> <p>Hearing upon the bill and demurrer, before Morton, J., who veserved the case for the consideration of the full court.</p> <p>This case was submitted on briefs, in November, 1877, by N. Morse, for the defendant, and Q. It. Train £ J. 0. Teele, for the plaintiff; and in March, 1878, the court permitted additional briefs to be filed by the same counsel, and by H. W. Putnam, in behalf of the city of Boston.</p>

<p>At the trial of a complaint under the bastardy act, the respondent put in evidence * paper purporting to be a release from the complainant to the respondent of all claims against him by reason of the birth of a child, of which she was delivered, ir consideration of a sum of money paid by him. Upon cross-examination, she was asked if she had put her mark to a paper. She replied that she had. The paper in question was then read to her, and she was asked if she put her mark to that paper. She replied that she thought not, and that she could neither read nor write. On reexamination, she was asked, “ Did the respondent at any time use intimidation or threaten you ? Now tell us what he said.” The respondent ohjected to the competency of this evidence, and the counsel for the complainant stated that he expected to prove that if the complainant executed the release, she did so under duress or fear of bodily harm from the respondent. The judge permitted the question to be asked for that purpose only. The complainant then testified to certain acts of intimidation by the respondent shortly before the birth of the child; that if the paper read at the trial was the paper she put her mark to, it was not properly read to her then as it was at the trial; and that she did not know its contents. Held, that the respondent had no ground of exception.</p>

<p>In an action against a married woman, for goods sold and delivered, there vras evi dense that the goods were originally charged to her husband, and credit given to him; that he was acting as agent for her; and that a short time after the action was commenced against her, the plaintiff signed a petition in bankruptcy against him, stating that this same debt was due from him. The judge ruled that the facts that the plaintiff originally gave credit to the husband, and also signed and swore to the petition in bankruptcy, were strong evidence that the debt was due from him and not from the defendant; but that these facts were not conclusive against the plaintiff, but were to be considered by the jury in connection with the other evidence in the case. Held, that the defendant had no ground of exception to the instruction.</p>

Writ oe entry to recover a parcel of land in Boston. Plea, nul disseisin. At the trial in the Superior Court, before Rock« well, J., it appeared that John Curtis conveyed the demanded premises, on December 5, 1870, to his brother, Lawrence Curtis, who, by a deed dated December 6, 1870, and acknowledged in the April following, conveyed the same to Bridget Curtis, the wife of John.

The bibst case was an action of contract for the recovery of damages for breach of a contract for the sale and delivery of a quantity of plate glass, with a count for money paid.

Contract upon a bond to dissolve an attachment, signed by the first named defendant as principal and the others as sureties. Writ dated March 14, 1877. Answer, a general denial.

Contract upon a promissory note for 181.87, dated September L3, 1861, signed by the defendant in the presence of an attesting witness, and payable to the order of the plaintiff, in two years from date, with interest. Writ dated February 14, 1877.

<p>Contract against Freeman Leavitt and George W. Stacy, on a recognizance, entered into under the Gen. Sts. c. 124, § 10, on January 14, 1876, by the first named defendant as principal and the other as surety; and conditioned that Leavitt, who had been arrested on an execution in favor of the plaintiff, should, within thirty days from the day of his arrest, deliver himself up for examination before some magistrate authorized to act, giving notice of the time and place thereof in the manner provided by law, and appear at the time fixed for his examination, and abide the final order of the magistrate thereon. Writ dated November 2, 1876. The only answer filed was by Stacy. This contained a general denial, and alleged, that Leavitt, after he had entered into the recognizance, and before the expiration of the thirty days from the date thereof, notified the plaintiff that he should take the oath for the relief of poor debtors; and thereupon, before the expiration of the thirty days, the plaintiff agreed with Leavitt that if he would waive his right to give such notice and take the oath for the relief of poor debtors, the plaintiff would accept a certain sum, being much less than the original debt, to wit, the sum of $115, which amount the plaintiff represented that he had paid out in the matter, together with .a small sum for the plaintiff’s fees, and that the same should be deemed to be in full satisfaction of said debt and execution, and that the plaintiff would thereupon discharge said recognizance, and this defendant as surety therein, and would take in settlement of said sum from Leavitt five dollars peí week for each and every week thereafter until the whole sum was paid, and that Leavitt then and there agreed with the plaintiff to waive the oath for the relief of poor debtors and to pay the plaintiff said sum of five dollars per week, and so notified the surety, and did so pay him thereafter in all about $100.</p> <p>At the trial in the Superior Court, before Putnam, J., the plaintiff, before my evidence was put in, requested the judge to rule that this answer did not set up any defence; but the judge refused so to rule.</p> <p>Leavitt testified, in behalf of the defendant, that, about four or five days before the expiration of the thirty days, he went to the plaintiff’s office, and told him that, unless some arrangement could be made, he should have to take the poor debtor’s oath; that the plaintiff said that, if he was paid what he had paid out and costs, he should be satisfied, agreed to take five dollars a week, and said that the surety would be discharged; that the amount to be paid was not fixed; that the witness paid the plaintiff the first five dollars on Saturday, February 12, the day agreed upon for the first payment, and the day before the expiration of the thirty days, and he accepted it; that he paid him regularly five dollars a week, with .the exception of one or two weeks; that he asked the plaintiff, several times after, how much he had got to pay him; and he said he would look over his papers and see; that when he paid him last, in July, the plaintiff said that he would have to make two or three more payments; that he never paid him any after the last of July, 1876 ; that he paid him in all about $100, or $105 ; that he told Stacy upon his return home, after the first agreement, that he had arranged it with the plaintiff and he was released.</p> <p>Stacy testified that Leavitt informed him of this agreement with the plaintiff before the expiration of the thirty days, and he took no further notice of it; that when this action was brought he went to the plaintiff’s office and told him he had understood from Leavitt that the latter had agreed to waive the taking of the poor debtor’s oath upon the plaintiff’s agreeing to receive from him so much a week towards payment of the debt, and that -he, the surety, was released; and that he did not recollect tho/ the plaintiff said anything.</p> <p>Stacy was not present at or a party to the arrangement with the plaintiff. The plaintiff denied that any snch arrangement was made as set forth in Stacy’s answer, or as testified to by Leavitt, and called other witnesses, who confirmed his testimony.</p> <p>The plaintiff requested the judge to instruct the jury that the agreement which the defendants set up was an agreement wholly without consideration, so far as the plaintiff was concerned, and did not create any obligation upon him. The judge declined so to rule, and the plaintiff excepted.</p> <p>The judge ruled that the answer set out, substantially, a good defence as to Stacy, and that, if the jury found that the agreement alleged was made between the plaintiff and Leavitt, and acted upon by them, and Leavitt, by reason of such agreement, did not give Ms notice, it was a new arrangement as to the payment of the debt, wMch discharged Stacy upon the recognizance, and their verdict must be for him. To this ruling no exception was taken.</p> <p>The jury returned a verdict for the defendant Stacy; and the plaintiff alleged exceptions to the refusal to rule as requested.</p>

<p>In an action on a debt barred by a discharge in insolvency, statements, in letters from the defendant to the plaintiff, that he had not the money to assume the debt at the moment, that he should like to have the plaintiff collect the dividend, and the balance of the debt would be ultimately paid; that the account would be one of the first, if not the very first, of the back matters that would be paid, and would certainly be paid if the defendant lived • that as soon as he should be able to take up any of that class of debts, the plaintiff’s would be included in the first payment ; that the account, with the others, would be paid as soon as he could do so; do not amount in law to an absolute new promise to pay the debt, but, at most only to a conditional promise to pay when the defendant should be able.</p> <p>Upon the issue of the defendant’s ability to pay his debt to the plaintiff, an entry in a tax-book, showing the value of the defendant’s property for the purposes of taxation, is incompetent evidence.</p>

Contract upon an account annexed for goods sold and delivered. The answer was as follows: “ And now comes the defendant and denies each and every allegation in the plaintiff’s writ and declaration contained.

<p>Trustee process. Writ dated March 15,1877, and served on the same day. Michael Englehardt, summoned as trustee, answered that on March 14, 1877, he owed the defendant $110, and gave him his check for that amount, which the defendant accepted in settlement of the debt; that there were sufficient funds deposited in the bank, on which the check was drawn, to his credit, to pay the check on presentation; that the check was presented by the defendant and paid at the bank on March 16, T877; that when the writ was served upon him, he informed the officer that he had given to the defendant a check for all he owed him, and that the service was too late; and that, at the time of .the service upon him, he did not know whether the check had been duly presented to the bank, or in whose possession it was, and made no inquiry in regard to it.</p> <p>In the Superior Court, the defendant was defaulted, and the trustee discharged. The plaintiff appealed to this court.</p>

Contract against George W. Gerrish and John Q. A. Hanson on two joint and several recognizances entered into under the Gen. Sts. c. 124, § 10, on September 5, 1874, by the first named defendant as principal, and the other defendant as surety, and each containing the usual conditions. Writ dated October 6, 1874, and returnable at January term 1875 of the Superior Court. On February 18, 1876, Hanson filed an answer, setting up his discharge in bankruptcy.

<p>The St. of 1874, c. 372, §§ 23-31, authorizing persons, incorporating themselves for the purpose, to construct a railroad, or an existing railroad corporation to construct an extension, upon submitting a map and profile of the proposed route, (first ob taining the approval by the board of railroad commissioners of any crossing of another railroad at the same level therewith,) to the selectmen of any town, ana the mayor and aldermen of any city, through which the road passes, and agreeing with them as to the route in that town or city, does not authorize a railroad to be constructed, without express grant from the Legislature, within the legal location, not exceeding five rods in width, of the railroad of another corporation, appropriated by that corporation to purposes incident to the proper construction, maintenance, management and use of its mad for the transportation of passengers and goods.</p>

Contract for money had and received, brought against a savings bank by the administrator of a depositor. After the former decision, reported 122 Mass. 443, the case was tried in the Superior Court, before Bacon, J., who allowed a bill of exceptions in substance as follows : The plaintiff is the administrator with the will annexed of the estate of John Marley.

<p>A testator, by his will, gave the residue of his estate to trustees to pay out of the net income thereof a certain sum each to his sister and widow during their lives; one third of the balance of such net income to his son A.; and the remainder of such balance, share and share alike, to his two minor children. The will then provided for the final payment, subject to the rights of the sister, widow and A., of the principal of the trust fund to such minor children or their issue, or, in a certain event, to the survivor of them, and, in case both should die at the same time, each intestate and without issue then living, “ to my legal heirs, the same as if they then inherited the same from me; but with this exception and provision, that neither my son A., nor his issue, executors, administrators or assigns, by will or otherwise, shall have or enjoy any part thereof either by virtue of this will or by inheritance ; it being my intention in making this will that the provision hereinbefore made for an income in his behalf during his life shall be all that he shall enjoy out of my estate in any event whatever.” Held, that A., after the death of the widow in the lifetime of the minor children, was entitled to one th'ird of her share of the net income.</p>

Contract on a recognizance entered into under the Gen. Sts. o. 124, § 10, on September 20, 1875, by Moses White as principal, and the defendant as surety, and conditioned that White, who had been arrested on an execution in favor of the plaintiff, should, within thirty days from the day of his arrest, deliver himself up for examination before some magistrate authorized to act, giving notice of the time and place thereof, and appear at the time fixed for his examination, and…

Tobt for injuries to the plaintiff’s horse caused by the alleged negligence of the defendant. Trial in the Superior Court, before Bacon, J., who allowed a bill of exceptions in substance as follows: It appeared in evidence that the plaintiff hired a horse and carriage on Sunday, August 1, 1875, for the purpose of going from Chicopee to Springfield, to attend a camp-meeting.

Tort for injuries occasioned by the defendant maintaining its dam at too great a height. Trial in this court, before Morton, J., who, before verdict, reserved the case for the consideration of the full court. The facts appear in the opinion.

Libel for divorce from the bond of matrimony, alleging that adultery was committed by the libellee on January 1,1875, with John Pettigrew, and that the libellee and Pettigrew had lived together as man and wife from that date to the date of filing the libel, March 14, 1877.

Contract upon an account annexed for the balance due on a sale of a parcel of land in Provincetown. Answer, failure of consideration.

Contract on a recognizance, entered into under the Gen. Sts. c. 124, § 10, by the first named defendant as principal, and the other as surety, and conditioned that Carr, who had been arrested on an execution in favor of the plaintiffs, should, within thirty days from the day of his arrest, deliver himself up for examination before some magistrate authorized to act, giving notice of the time and place thereof in the manner provided by •aw, and appear at the time and place…

Contract on a recognizance, entered into on September 27, 1876, -under the Gen. Sts. c. 124, § 10, by David McGuire aa principal, and the defendant as surety, reciting the arrest of McGuire on an execution, bearing date August 1,1876, issued upon a judgment of the Municipal Court of the city of Boston in favor of the plaintiff, and conditioned that McGuire should, within thirty days from the day of his arrest, deliver himself up before some magistrate authorized to act,…

<p>Contract on a recognizance, entered into under the Gen. Sts. c. 124, § 10, by C. P. Taft as principal, and the defendant as surety, and conditioned that Taft, who had been arrested on an execution in favor of the plaintiff, should within thirty days from the day of his arrest, deliver himself up for examination before some magistrate authorized to act, giving notice of the time and place thereof in the manner provided by law, and appear at the time and place fixed for his examination, and from time to time until the same was concluded, and not depart without leave of the magistrate, making no default at any time fixed for his examination, and abide the final order of the magistrate thereon.</p> <p>Trial in the Superior Court, before Allen, J., who, by consent of parties, before verdict, reported the case for the consideration of this court. If, upon the facts, the discharge of the debtor was invalid, judgment was to be entered for the plaintiff; otherwise, for the defendant. The facts appear in the opinion.</p>

<p>It is no objection to the maintenance of a mechanic’s Hen, under the Gen. Sts. c. 150, that the initials only of the Christian name of the owner of the land are stated in the certificate filed in the registry of deeds, under the St. of 1874, c. 321, § 4, although the person claiming the lien knows the full name.</p> <p>In a petition to enforce a mechanic’s lien, under the Gen. Sts. c. 150, the Christian name of the respondent was James. The certificate of lien stated the Christian name as “ John,” and the last three letters of the name were erased before the certificate was recorded, but the name was recorded as John. Held, that the mistake of the recording officer did not prevent the enforcement of the lien.</p> <p>At the trial of a petition to enforce a mechanic’s lien, under the Gen. Sts. t. 150, the petitioner’s certificate of lien set forth that he “ performed and caused to be performed labor ” on a double wooden house on land owned by the respondent; that the labor was performed under a contract made with a person named, who was thereto duly authorized by the owner; that the contract was “ to labor and furnish labor by the day on said house; ” and that he “ ceased to labor and cause labor to he performed on said house ” on a certain day. The judge, trying the cause without a jury, found that the double house formed one building. Held, that the description of the work done was sufficient to show that it was done in constructing, altering or repairing the respondent’s building; that the aUegations of the petition, both as to the character of the work done and as to part of it being caused to be performed by the petitioner, were sufficient after verdict; that the allegation that the petitioner ceased to labor and cause labor to be performed on a certain day embraced both labor performed and labor furnished under the contract; and that the lien could be maintained on the entire building, although part of the work was done on each of the houses.</p>

<p>In an action on a check, it appeared that the cheek was given for a balance of wages supposed to be due, hut which the defendant contended were not in fact due by reason of the alleged unfaithfulness of the payee to perform the services for which he was hired. The defendant contended that if the jury found that the payee had not fulfilled his contract, hut had in effect broken it, they must find for the defendant, unless the services were of some value over and above the amount received by him; that their verdict must not exceed the amount thus found; and that the burden of proof was upon the plaintiff to show that the services had been of some value to the defendant. The judge instructed the jury that the burden was upon the plaintiff to show a sufficient consideration for the check; and that if the payee had broken his contract for services with the defendant, the defendant was entitled to have his damages for such breach set off against the check by way of recoupment or defence in whole or in part. Held, that the instruction given was substantially the same as that requested by the defendant; and that the defendant had no ground of exception</p>

<p>The writ in this case, dated March 18, 1876, described the action as tort or contract. The declaration was as follows: “ And the plaintiffs say that on or about September 11, 1875, they were engaged in business as dealers in gas fixtures, chandeliers, &c., at Nos. 27 and 29 Bromfield Street, in Boston, and had a well established and large business at their said place of business. That on said day the defendant applied to them to purchase certain gas fixtures, chandeliers, &c., to be put into a restaurant at No. 19 Tremont Street in Boston, and requested the plaintiffs to do the work necessary to the hanging of the chandeliers, and to furnish all the piping and necessary parts and implements for the complete hanging and fitting of said rooms with gas fixtures, chandeliers, &c. And the defendant represented to the plaintiffs that he was a man of property, that he had a large amount of ready cash, that he owned a large amount of real estate, and that he would pay for said merchandise, and for all labor done and performed by the plaintiffs, in cash, in thirty days after the said merchandise had been delivered, and the said labor necessary to the complete adjustment of said fixtures and chandeliers had been performed by the plaintiffs. And the plaintiffs, relying upon such representations, furnished to the defendant material and labor specified in the account hereto annexed, which is made a part of this declaration,</p> <p>“ And the plaintiffs further say that thereafter, on or about November 1, 1875, after said merchandise had been delivered, and said labor had been performed, they called upon the defendant for a settlement of said account; and the defendant then and there represented that he was temporarily embarrassed by the'expenditure of a large amount of money upon the premises at the said 19 Tremont Street, and that it was not convenient for him to pay said bill in cash, but that he would give to the plaintiffs a note for the amount of said bill on four months from said November 1, which note should be paid at maturity; the defendant then and there repeating, as hereinbefore set forth, that he was a man of large means; that he was owner of real estate in New York and New Jersey, and that he would pay for the merchandise delivered and the labor performed. And the plaintiffs, relying upon said representations, received from the defendant his note for the sum of five hundred and fifty-seven dollars, dated November 1, on four months, payable to the order of the plaintiffs, which note the plaintiffs continued to hold as their own property until the maturity thereof, when the defendant refused and neglected to pay the same, and has never yet paid it or any part thereof; nor has he paid for said merchandise or labor, or any part of the same. And the plaintiffs aver that the defendant, at the time of the purchase of said merchandise, was insolvent, all of which was well known to the defendant ; that the defendant, for the purpose of deceiving the plaintiffs, and obtaining the plaintiffs’ property without consideration," falsely and fraudulently represented to the plaintiffs that he was a man of property, when, in truth and in fact, the defendant was insolvent, all of which was well known to the defendant - and that the defendant made said representations for the pur pose of defrauding the plaintiffs, all of which was well known to the defendant, but by the defendant concealed from the plaintiffs.” The account annexed set forth the items of the materials and labor furnished, amounting in all to $557.</p> <p>Answer: 1. A general denial.. 2. A discharge in bankruptcy granted September 12, 1876, from all debts and liabilities existing March 29, 1876. The plaintiffs demurred to the answer, and assigned as a cause of demurrer that, under the provisions of the U. S. Rev. Sts. § 5117, the discharge in bankruptcy was not a bar to this action, “ for the reason that property was obtained from the plaintiffs by false and fraudulent representations.”</p> <p>By the consent of parties, the case was reserved by Dewey, J., for the determination of this court. If the demurrer was sustained the case was to stand for trial; otherwise, judgment was to be entered for the defendant.</p>

<p>It is a good consideration for a promissory note given by the promisor, who was an assignee of a bankrupt, towards the payment of moneys received and misused by him, that the promisee, who was his co-assignee, refrained from pressing proceedings against him instituted to protect the interests of the creditors.</p>

<p>Patterns used in moulding castings, and of such a size and shape as to he applied and removed by the hands of one man, are tools, within the meaning of a policy insuring “ fixed and movable machinery, engine, lathes and tools ” of a manufacture! of machinery, parts of which are made by the use of such castings ; and a provision, excepting from the operation of the policy “jewels, plate, watches, ornaments, medals, patterns, printed music, &c., unless particularly specified,” does not apply to 'such patterns.</p>

<p>Contract on the following agreement: “ The Connecticut & Passumpsic Rivers Railroad Company agrees to transport for Wm. Harvey & Co., lumber, such as railroad ties, shingles, hewn and sawed timber of all kinds, clapboards, shingle and stave-bolts, from Warwick and Askerbaska stations, on the Grand Trunk Railway, in Canada, to Boston, at sixty-seven dollars eighty cents per car of ten gross tons, for twelve months from this date, in United States currency; also from Dusett’s Landing, in Canada, for seventy-six ^¡Pu dollars per car of same weight. Boston, August 31, 1871.</p> <p>“ Emmons Raymond, Prest.”</p> <p>At the trial in this court, before Colt, J., the jury returned a verdict for the plaintiff; and the judge reported the case for the consideration of the full court. The facts appear in the opinion.</p>

Tobt. Writ dated June 12, 1876. The second count of the declaration, as amended, was as follows : “ And the plaintiff says that on or about the first day of July, 1875, he took an order from one Osborne N. Sargent of Boston, for certain goods as set out in the bill of particulars hereunto annexed, to be manufactured by the plaintiff in accordance with certain samples, then and there exhibited to said Sargent by the plaintiff, and to be delivered by the plaintiff to said…

<p>Contract, on an account annexed, for goods sold and deliv • ered. Answer, that the plaintiffs agreed to take and did take in payment for the goods, a promissory note for $1000 signed by Arthur Towne, payable to his order and indorsed by him and by R. W. Lougee, and that it was a full payment and satisfaction therefor. Replication, that the plaintiffs did not take the note in exchange or payment for the goods, but took it as collateral security therefor; that, if they did take it in exchange or in payment for the goods, they were induced so to take it by the false and fraudulent representations of the defendant as to the solvency of the maker and indorser of the note; and that both the maker and indorser were perfectly worthless at the time they took the note and that the defendant knew it, and that they continued worthless until the note became due.</p> <p>At the trial in the Superior Court, before Colburn, J., the plaintiffs introduced evidence tending to show that the defendant represented to the first named plaintiff, before the note was taken, that Towne was perfectly good then; that he was worth from $9000 to $12,000; that he was a dealer in real estate; that in a year or two he did not know how he would be, but until that note was paid he was perfectly good.</p> <p>The plaintiffs, for the purpose of showing that the representations alleged to have been made by the defendant as to the responsibility of Towne were false and fraudulent, were permitted to introduce evidence tending to show that, at that time, Towne was worthless, and that the defendant was so dealing with him and meeting him that it was probable that he knew it.</p> <p>There was conflicting evidence as to whether the note was taken in payment or exchange for the goods, or as collateral security merely.</p> <p>The defendant requested the judge, among other things not now material, to instruct the jury: “ 3. That, if the defendant made no representations to the plaintiffs as to Towne’s or Lou-gee’s responsibility or- property, further than giving his opinion merely as to Towne’s or Lougee’s condition and responsibility, such opinion would not be such a false representation as would avoid the contract, even if the opinion given were erroneous.” The judge gave the instruction, but added: “ If the opinion was not honestly given, but was falsely and fraudulently given, in order to mislead the plaintiffs, they might avoid the contract.”</p> <p>The jury returned a verdict for the plaintiffs; and the defendant alleged exceptions.</p>

Tobt for personal injuries caused by an alleged defect in Bartlett Street, in that part of Boston formerly Charlestown. Writ dated June 24, 1875.

<p>A., by an agreement reciting certain indebtedness of his to a firm, part of which consisted of drafts accepted by the firm for his accommodation, assigned to B., a member of the firm, as security, certain personal property, and also all claims for loss under ail policies of insurance on certain property, the same to be made payable to B., and any balance remaining in B.’s hands, after settling in full all such indebtedness, to be paid over to A. Subsequently, a loss by fire occurred on the property, and A. executed a general assignment to B. of all the policies in force thereon at the time of the loss, enumerating them, with authority to collect the same, and, after satisfying all claims of the firm “by reason of any and all pecuniary obligations, under which the firm now is,” to account to A. for the balance. A. then indorsed and signed on the several policies the following: “ Pty all claims under this policy to B., value received.” Held, that B. was entitled to hold the policies as security for the whole amount due on all accounts from A. to the firm.</p>

Contract by the owners of the Schooner Charles F. Sampson, on a charter-party, whereby the vessel was chartered to the defendant “for six successive trips, or as many as vessel can make from April 1 to November 1,1874, from Baltimore, Maryland, and Georgetown, District of Columbia, to Boston, Massachusetts, and to be discharged in Boston below all bridges, at a good and safe place where there is sufficient water guaranteed; sufficient water at place of loading guaranteed by…

Bill nr equity for specific performance of an agreement to convey land. Hearing, upon the pleadings and proofs, before Ames, J., who made a decree dismissing the bill; and the plaintiff appealed to the full court. The facts appear in the opinion.

Indictment, on the Gen. Sts. e. 161, § 18,* charging the defendant with the larceny, on January 20,1877, of “divers promissory notes of the amount and of the value in all of five thousand dollars, a more particular description of which is to the jurors unknown, of the property, goods and chattels of one Judson N. Farrar, in his possession then and there being.” In the Superior Court, before the jury were empanelled, the defendant filed a motion to quash the indictment,…

<p>An assignment by a debtor, in trust for certain persons named therein, of funds in a bank, alleged to be the proceeds of goods consigned to him for sale on commission by such persons, without consideration beyond the acceptance of the trust, is void as against creditors not assenting to it.</p>

Contract. The declaration contained two counts. The first count was for money had and received to the plaintiff’s use, with interest since July 1, 1868, according to the following bill of particulars: “ July, 1868. Charles Hawks to Frederick Hawks, Dr. To cash received from sale of one half farm in Deerfield, after deducting mortgage thereon $2625 Or.

Tort for injuries to the plaintiff’s mill property by the alleged negligent acts of the defendant.

Contract to recover back the amount of an assessment laid upon the plaintiff’s estate for the cost of a sidewalk, and paid under protest.

Writ of error to reverse a judgment of the Superior Court, rendered upon the default of the plaintiff in error, on a writ of entry brought against him by the defendant in error, in the form of a writ of summons and attachment, on which the return of the officer was that he had attached all the defendant’s real estate in the county and had afterwards summoned him to appear and answer by leaving a true and attested copy of the writ at his last and usual place of abode.

<p>In an action on a premium note, given for a policy of marine insurance, the defendant cannot, under the Gen. Sts. c. 130, § 3, file a declaration in set-off for a partial lose, although the policy contains a clause providing that in case of loss the amount of the premium note shall he first deducted.</p>

<p>A deposit in a savings bank may be the subject of a gift causa mortis ; and the gift may be proved by the delivery of the bank book representing the deposit, accompanied by an assignment to the donee.</p> <p>If a person receives a gift causa mortis in trust, neither the persons who are to take nor their proportions being clearly designated, the trust will fail, and the donee cannot take for his own benefit.</p>

<p>Contract. The declaration contained three counts. The first was to recover $200, on an account annexed, for “ furnishing materials for, and labor and work in making, a monument.” The second was as follows: “And the plaintiff says that he made an agreement with the defendant to furnish materials and construct for her a monument for the sum of two hundred dollars ; that he furnished materials and made said monument for the defendant, and tendered the same to the defendant; and that she owes him therefor the sum of two hundred dollars.” The third was on an account annexed, and contained the following items : “ To ten days’ labor on monument, $50. To three days’ services in preparing land and foundation for same, $15.” Answer, a general denial.</p> <p>At the trial in the Superior Court, before Dewey, J., the plaintiff testified that he was a manufacturer of monuments and gravestones, keeping on hand stock and partly finished monuments, to be finished to order; that the defendant came to his shop and said she would like to get a monument; that he showed her several monuments partially manufactured, among them the one in question, the price of which he told her was $250, when finished with base, cap and plinth, and polished; that she said she had some land, and he said perhaps they might trade with the piece of land; that if he could get a piece of land at a reasonable price he might trade with her; that if she would sell the land at the same price for which she had sold another piece, he would trade with her for the monument; that they went on the land and looked at the lots, for one of which she asked $435; that he told her he would throw off $50 on the monument, calling it $200 complete, if she would throw $35 off on the lot, and would give her $100 cash, and $100 later, and the monument completed with the inscription, for the lot of land ; and that to this proposition she agreed, and the lot was selected and agreed on.</p> <p>There was also evidence that subsequently the plaintiff purchased a plinth, and one of his workmen worked three or four days, fitting and polishing the monument, putting on the cap and mouldings, and one third of the inscription, which the defendant had given him to be put on the monument, at the time of the original contract, was put on, taking three days’ work; that the defendant then notified the plaintiff that she would not take the monument, as she had been advised it was too large, and refused thereafter to take it; that subsequently the plaintiff completed the monument and inscription, and offered to deliver it to her, and pay her $100 cash and give her his note for $100, secured by mortgage on the land, and demanded a deed of the land; that she refused to accept the monument, money and note, and refused to deliver him a deed of the land.</p> <p>Upon this evidence, the plaintiff contended that he had the right to recover the sum of $200, for furnishing materials and completing the monument, and that, if he could not recover for the materials or the monument, he had a right to recover for hia labor in completing the monument. The defendant contended that the Gen. Sts. c. 105, § 1, cl. 4, and § 5, were a bar to the action. The judge, by consent of parties, before verdict, reported the case for the determination of this court. If, on this evidence, the action could not be maintained, judgment was to be entered for the defendant; otherwise, the case to stand for trial.</p>

<p>If a mortgagee of land sells it, in pursuance of a power contained in the mortgage, and buys it himself, in all respects complying with the power, for a larger sum than the amount of the mortgage note and the expenses of the sale, the note is thereby paid, and he cannot, by refusing to execute the deed, rescind the sale, and maintain an action on the note.</p>

<p>A vote of a city council, approved by the mayor, that there be “allowed and paid to” A. a certain sum “in full settlement of all claims against the city,” “for services rendered and money expended by” A.; “and that the same be charged to the fund appropriated for incidental expenses,” is not a draft or order for the payment .of money, which can be declared on as such.</p> <p>Pending an action against a city for services alleged to have been rendered it, the plaintiff petitioned the city for compensation for such services, stating that he had resolved to discontinue his action. The action was afterwards discontinued, and judgment rendered for the defendant. After this, the city council passed an order directing that a certain sum should be paid the petitioner in full of all claims against the city; and the Legislature passed an act authorizing the city to pay the petitioner in conformity to the order of the city council. Held, that there was no legal consideration for the passage of the order. Held,, also, that even if the circumstances accompanying the passage of the order might be given in evidence, the motives, reasons and considerations, which operated upon the minds of the members of the council to induce them to vote for the passage of the order, were not admissible.</p>

Contract upon a promissory note for $1000, dated August 23, 1876, made by the defendant, and payable to the plaintiff on demand, with interest. Answer, a general denial. The case was submitted to the Superior Court on an agreed statement of facts, in substance as follows : The action was defaulted when reached for trial.

<p>Tort. The declaration alleged that the defendant, in order to induce the plaintiffs to sell him goods on credit, falsely represented to them that he was then a man of large property and able to pay his debts; that his annual sales in his business were from $150,000 to $200,000; that he then had in his business a capital of $50,000, all his own; that the plaintiffs, believing these representations to be true, were induced to sell and did sell the defendant goods to the amount of $8024.94 on a credit of sixty days; and that all of these representations were untrue to the knowledge of the defendant.</p> <p>The answer denied that the defendant made the representations alleged in the declaration ; and averred that on September 23, 1876, the defendant entered into a composition in bankruptcy with his creditors under the U. S. St. of June 22, 1874, § 17; that he duly tendered to the plaintiffs the amount of theii claim at the composition agreed upon by his creditors, which they declined to accept; and that by virtue of the resolution of composition he was discharged from his indebtedness to the plaintiffs.</p> <p>At the trial in the Superior Court, before Grardner, J., without a jury, it appeared that the plaintiffs sold the goods to the defendant about June 30, 1876, on sixty days’ credit. And the plaintiffs offered evidence tending to show that, at the time of the sale, the defendant made substantially the representations alleged in the declaration; and that these representations were false.</p> <p>The defendant then proved that on September 9, 1876, he filed a petition in bankruptcy in the District Court of the United States for this district, but was not adjudicated a bankrupt; that upon his petition thereafter for a meeting of his creditors to consider the offer of a composition for the payment of forty-five cents on the dollar of all claims against him provable in bankruptcy, except such as were entitled, under the bankrupt law, to be paid in full, a meeting was called under the direction of the court, and had before a register; that the defendant was present, and then and there produced schedules of all of his assets and debts, and of all persons having claims against him, including the names of the plaintiffs, their address, and the amount due to them, correctly; that his creditors at said meeting, by the requisite number and amount, voted and resolved to accept his offer, and it was duly confirmed in writing by the signature of the debtor and the requisite number and amount of his creditors to make it operative, and at a meeting duly called the resolution was duly ordered by the court to be recorded; that such order had not been vacated or annulled; and that the defendant duly made offer and tender of the amount due to the plaintiffs, according to the resolution and order, but they refused to ac.cept it, and took no part in any of the proceedings.</p> <p>The plaintiffs did not contend that these proceedings were irregular, but only that the composition was no bar to this action, and their claim not discharged or affected thereby, because the goods were obtained under the circumstances hereinbefore stated.</p> <p>The defendant requested the judge to rule that the composition operated as an accord and satisfaction of the claim in suit, and as a discharge of it, and was a bar to this action. But the judge refused so to rule; found the facts substantially as set forth in the declaration ; and assessed damages for the amount of the agreed price of the goods and interest. The defendant alleged exceptions.</p>

Contract on eight promissory notes made by the defendants and indorsed by the Washoe Tool Manufacturing Company, to which they were either indorsed or made payable.

Contbact for money lent. The defendant filed a declaration in set-off, on an account annexed, for the proceeds of the sale of certain shares of stock pledged by him to the plaintiff as security for the loan.

<p>Contract to recover the value of 33 barrels of beef, with a count in tort, for the conversion of the same, alleged to be for the same cause of action.</p> <p>The case was submitted to the Superior Court, and, after judgment for the plaintiffs, for the full amount claimed, to this court, on appeal, on an agreed statement of facts in substance as follows:</p> <p>The barrels of beef in question were delivered by the plain tiffs, doing business under the style of Libby, McNeill & Libby, at Chicago, Illinois, in the month of June, 1875, in different lots, from time to time, to the Lake Shore and Michigan Southern Railroad Company, to be by them and other railroad companies, associated together as the Red Line Transit Company, transported and forwarded to Lynn, Massachusetts, and were marked “ C. H. Lowell-& Co., Lynn, Massachusetts.”</p> <p>At the time of shipment, receipts for each lot, of tenor similar to the following, were given by the receiving railroad company to the plaintiffs: “ Red Line Transit Company, Chicago, June, 1875. Received, in apparent good order, from Libby, McNeill & Libby, to forward as consigned in the margin.” In the margin, under “ Marks and Consignees,” appeared “ C. H. Lowell & Co., Lynn, Mass. Order Libby, McNeill & L.,” and in the body of the receipt, under “ Description of property,” appeared “ Bbls. dried beef.”</p> <p>The barrels of beef arrived in Boston, in due course of transportation, in different lots; and, as received, were delivered to the defendants by the Boston and Albany Railroad Company to complete their .transportation, and freight bills of the different lots were given to the defendants by the Boston and Albany Railroad Company, prior to the delivery of each lot of beef to them, containing the following instruction: “ Order Libby, McN. & L. Notify C. H. Lowell & Co., Lynn.”</p> <p>The receipts, given in Chicago, were indorsed by the plaintiffs in blank, attached to drafts drawn by the plaintiffs on C. H. Lowell & Co., payable to the order of the Adams Express Company, for the value of the several lots, and were given by the plaintiffs to the Adams Express Company at Chicago, by which from time to time they were indorsed and given to the defendants.</p> <p>The defendants received the drafts for the various lots before they received the barrels, except in the case of two shipments of three barrels each. In these instances the drafts were received on the day following the delivery to them of the barrels.</p> <p>The drafts were not paid by Lowell & Co., nor were the indorsed receipts given to them; but the barrels of beef were delivered by the defendants to Lowell & Co., without their pro-¿lacing the indorsed bills of lading or receipts, or any order from the plaintiffs; the unpaid drafts and indorsed receipts were returned by the defendants to the Adams Express Company.</p> <p>The defendants were, at the time of the receipt of the goods, common carriers of goods and merchandise between Boston and Lynn, and received the goods as such.</p> <p>Due demand for the return of the goods was made on the defendants after they had delivered the same to C. H. Lowell & Co., but before suit was brought.</p> <p>Judgment was to be entered on these facts for the plaintiffs, for the amount of such lots as the defendants were liable for.</p>

<p>Contract against the defendant as second indorser of a promissory note for $2500, dated July 21, 1874, signed by Abel- S. Hussey, and payable to Leonard A. Jones or order in two years from date, and having on its face a memorandum that it was secured by a mortgage of real estate in Boston. On the back of the note were the following :</p> <p>“Pay Robert M. Thompson or order. Leonard A. Jones.”</p> <p>“ Robert M. Thompson.”</p> <p>“ July 6, 1876. I hereby waive demand and notice on the within note. Leonard A. Jones.”</p> <p>The answer denied that the defendant indorsed the note to the plaintiff; and alleged that said Jones indorsed the note and assigned it, together with the mortgage, to the defendant as collateral security for a loan of money, by a deed of assignment, dated July 24, 1874 ; that afterwards Jones paid to the defendant the amount of the loan, and directed him to assign the note and mortgage to John Pickering and Charles U. Mosely; that' thereupon the defendant wrote his name on the back of the note and executed a deed of assignment, dated October 9, 1874, and delivered the note and deed to Jones to be delivered to Pickering and Mosely as an assignment of the note and mortgage; that the defendant did not indorse the note, either as an accommodation indorser or otherwise, and did not authorize Jones to represent that the defendant had indorsed the nóte; that the defendant received no consideration for indorsing the note; that afterwards Jones paid to Pickering and Mosely the amount due them, and thereupon Pickering and Mosely assigned the note and mortgage to Jones by a deed of assignment, dated November 10, 1874; that afterwards Jones assigned the note and mortgage to the plaintiff by a deed of assignment, dated November 10, 1874; that the plaintiff had notice of the foregoing facts; that the plaintiff bought the note and mortgage, not knowing that the defendant’s name was written upon the back of the note, and not relying upon an indorsement of the defendant in any way as security for the payment of the note, and not giving any consideration for an indorsement of the defendant. Annexed to the answer were copies of the assignments, which were in the usual form of assignments of mortgages, each purporting to assign “ the mortgage deed, the real estate thereby conveyed, and the note and claim thereby secured.” In the assignment to the plaintiff, Jones was described as “ the mortgagee named in, and assignee of, a certain mortgage,” &c.</p> <p>At the trial in the Superior Court, Putnam, J., ordered a verdict for the plaintiff; and reported the case for the consideration of this court. The report, after stating, the pleadings as above, proceeded as follows:</p> <p>The plaintiff produced the note, the execution of which by Hussey, the signature of the defendant on the back of the note, and the fact of due protest and notice, were admitted, and rested his case.</p> <p>The defendant, in opening his case, stated the following propositions, upon which he asked the ruling of the court: “1. That if the jury found that the indorsement of the defendant was without consideration, and was circulated without right or authority from him, the burden would be on the plaintiff to show that it was a bond fide holder for value, that it took the note without notice of the defendant’s equities, and in the usual course of business; and that, to rebut such claim on the part of the plaintiff, the defendant would rely upon evidence of the negligence of the bank in employing Jones as its solicitor in the transactions by which the bank gained title ; and also upon the notice to the bank from the knowledge of Jones, who, it was contended, acted as solicitor for the bank in this transaction. 2. That the legal effect of the indorser taking up a note which has once been in circulation is to strike out all indorsements on the note subsequent to his; and that if the plaintiff took the note with notice that it had been in circulation, and had been taken up by Jones, who, as to the defendant, was a prior indorser on the note, it could not recover against the defendant. 3. That the burden was on the plaintiff to show that it gave value for the defendant’s indorsement, and how much, and that if the jury found that the indorsement was without consideration, and was circulated without right or authority from the defendant, the plaintiff could only recover the amount actually advanced by it on the credit of such indorsement. 4. That if it was out of the usual course of business for the bank to invest its deposits in indorsements, and if the jury found that the indorsement was without consideration, and was circulated without right or authority from the defendant, the plaintiff could not recover.”</p> <p>The defendant, against the plaintiff’s objection, put in the several assignments referred to in his answer.</p> <p>Leonard A. Jones testified, against the plaintiff’s objection, as follows: “ I am a conveyancer, and was, at the time of these transactions, connected with the plaintiff bank; was one of the trustees of the bank, and looked up most of its titles for it, but not all. I sold a house to Hussey, and received in payment part cash and the note in suit, secured by a mortgage on the house. The defendant lent me $2000, and I assigned this note and mortgage to him as collateral security. Two or three months after-wards he wanted his money, and I asked him to assign the note and mortgage to Pickering and Mosely, which he did. He gave me up the note and mortgage, and I paid him all of my debt. I did not notice at the time how the note was indorsed. .1 borrowed only part of the money from Pickering and Mosely, and the assignment of the note and mortgage to them was as collateral security. Afterwards I applied to the plaintiff bank to take the mortgage, and the treasurer went and looked at the house and decided to take the mortgage. While negotiating with the bank, I do ,not remember that anything was said about indorsers. I do not think that the bank knew that the note was indorsed. Pickering and Mosely retained the note in their possession until I took it and delivered it to the bank. The bank, as a fact, did not rely upon indorsers, and did not, at this time, protest any of its mortgage notes. We all supposed that the mortgage, was a perfectly good security, and the loan was made on its security. I wrote and signed the waiver of demand and notice on the note, long after it was transferred to the bank, and just before the note became due.”</p> <p>On cross-examination, he testified as follows: “ I never took part in managing the business of the bank. I never was on the investment committee of the bank, and never had anything whatever to do with the investment of its frauds. There were twenty-five or thirty trustees in all, of whom I was one. In the summer of 1874 I had no salary and no regular employment from the bank. Mr. Sanger was sometimes employed as conveyancer by the bank, and sometimes I was. I received value from, the bank for the full amount of the note and interest. I received $500 cash, and took up a note of mine, with two sureties, for $2000. I asked the treasurer to have Mr. Sanger look at this title; but he said no, if they could not rely on me in this matter, they could not in others. The bank always attends to recording the papers. I did not ask the defendant to indorse the note, either as an accommodation indorser or otherwise.” Against the objection of the defendant the witness further testified : “ I asked that Mr. Sanger should look at the title, because I considered myself acting as a party, and not as attorney for the bank. I think I left the assignment from Pickering and Mosely to me, and my assignment to the bank, for record, and gave the mortgage and note to the bank. Whenever I looked up titles, the borrower paid my bill out of his loan; I never received any fees directly from the bank.”</p> <p>The defendant testified, against the plaintiff’s objection, as follows : “ I lent Jones some money, and took an assignment of this note and mortgage as collateral security; afterwards Jones paid me the amount of the loan, and I executed an assignment of the note and mortgage to Pickering and Mosely; Jones did not ask me to indorse the note, either as an accommodation indorser or otherwise, and I did not intend to indorse it. I did not know Pickering and Mosely in the transaction at all, but signed the papers, intending to execute an assignment, and delivered them to Jones for that purpose only. The first I heard of the note was some time in the early summer of 1876, when the treasurer of the bank told me that the bank had a note indorsed by me. I told him he was mistaken, as I had not indorsed any note. I called at the bank, and he showed me the note and mortgage; I thought at first that it was not my signature, but finally concluded that it was. I do not think that Jones’s second indorsement was on the note when it was shown to me at this time.”</p> <p>The defendant asked the judge to rule that the plaintiff could not recover on its declaration, there being a variance between it and the proof, which showed that the bank took its title to the note by an assignment from Jones, and not by an indorsement from the defendant; but the judge refused so to rule, and the defendant excepted.</p> <p>The defendant here rested his case, and the judge, at the request of the plaintiff, ruled that there was no evidence to be submitted to the jury which would warrant a finding for the defendant, and directed a verdict for the plaintiff.</p> <p>If the above ruling was correct, judgment was to be entered for the plaintiff on the verdict; otherwise, the case.to stand for trial.</p>

Petition to enforce a mechanic’s lien for labor performed and materials furnished in the alteration and repair of a building in Boston.

<p>A secured creditor of the Eastern Railroad Company is entitled, under the St. of 1876, c. 236, to a certificate of indebtedness, without first surrendering his collateral security ; but, in ascertaining the amount for which such certificate is to issue, the value of the collateral security must be first deducted; and, if the collateral security is the bond of another corporation, guaranteed and indorsed by the Eastern Railroad Company, it is the value of such bond, without the indorsement and guaranty, which is to be applied in reduction of the debt.</p> <p>A creditor of the Eastern Railroad Company, who holds its promissory note, and, as collateral security for the same, certain other notes of the corporation, is not entitled, under the St. of 1876, c. 236, to sell such collateral security and receive certificates of indebtedness for the balance due on the original note.</p> <p>A person who holds certain bonds, not yet due, of another railroad corporation, payable to the order of and indorsed and guaranteed by the Eastern Railroad Company, is not entitled to the security of the mortgage made by the latter corporation to tli e trustees under the St. of 1876, c. 236.</p>

<p>Bill in equity by the Eastern Railroad Company, a corporation established in this Commonwealth, against the trustees of the same, appointed under the St. of 1876, e. 236, the holders of certificates of indebtedness issued under the trust deed to them, the Eastern Railroad in New Hampshire, the Portsmouth, Great Falls and Conway Railroad Company, both corporations established in the State of New Hampshire, and the holders, either as purchasers or as collateral security, of bonds of the Portsmouth, Great Falls and Conway Railroad Company, to obtain the instructions of the court. Hearing before Soule, J., who reserved the case for the consideration of the full court. The facts appear in the opinion.</p>

<p>A lease to A. contained a covenant that no assignment of the same should be valid without the consent in writing of the lessor. A. assigned the lease to B. with such consent, and B. assigned it to C. without the assent of the lessor. Held, that the covenant was waived by the lessor’s acceptance of rent from C.; and that C. might recover rent subsequently accruing of D., to whom B. had previously leased a portion of the demised premises, and who had knowledge of the assignment to C., and had paid him a part of such rent.</p> <p>A contract in writing to let, for a precise time and at a definite weekly rate, certain specified rooms in a house, divided up into sets of rooms and containing a restaurant, is a valid lease, although the lessor undertakes to serve a private table, and to furnish certain other accommodations, and imposes certain restrictions on the manner of the use and occupation.</p> <p>A stipulation in a lease of certain rooms in a house, containing a restaurant, and near several hotels and other restaurants, “to serve a private table” therein, is complied with by an offer to send out for a dinner to such a hotel to be served in such rooms.</p> <p>On the issue whether a servant delivered a certain message, it is within the discretion of the court, in order to show that the servant acted within his authority, to allow the giver of the message to testify what the message was.</p>

Contract against L. S. Jordan and A. S. Lovett, for breach of an agreement not to deliver a bank check to the payee until the happening of a certain event, with a count in tort for the conversion of the check, alleged to be for the same cause of action.

<p>A person, not the payee, who, before the St. of 1874, c. 404, wrote his name upon the back of a negotiable promissory note at its inception, and before its delivery, is liable as an original promisor; and paroi evidence is inadmissible to show that he wrote his name upon the note, not with the intention of adding his personal responsibility to its security, but merely in approval of it as the president of a company ; or that the treasurer issued the note in violation of a by-law of the company ; the plaintiff, the payee of the note, having no knowledge.of these facts.</p>

<p>A petition to enforce a mechanic’s lien described one lot of land as bounded north by H. Street and on the west by B. Street, and on the south and east by land of the owner of the lot; and another lot as bounded west by B. Street, and southerly by P. Street, and on the north by the estate of S., and on the east by land of the owner of the lot. The petitioner’s statement, filed in the office of the city clerk, described the first lot as bounded east by the estate on the corner of B. Street and a new street, and south by the new street, which was described as the first street on the left, going north, on B. Street from C. Avenue, and as bounded on the north and west by land of the same owner; and the second lot as bounded easterly by B. Street, and south by the new street running between B. Street and C. Avenue, next south from 0. Street, and a little to the north of the barn of S., and as bounded on the north and west by land of the same owner. H. Street ran from B. Street on the right going north, and was some distance south of C. Avenue; and P. Street ran from B. Street at some distance north of C. Street. Held, that the statement would not warrant a jury in identifying the lots therein described with those described in the petition.</p>

<p>Contract against George D. Putnam and David E. Saunders, Jr., to recover $33.33, alleged to be due the plaintiff on May 1,1875, under the following agreement, dated March 27, 1875, and signed by the plaintiff and defendants :</p> <p>“ Whereas Thomas S. Harlow is the owner of letters patent of the United States, numbered 77,458, for an improvement in grate bars, and Messrs. George D. Putnam and David E. Saunders, Jr., copartners, doing business under the name of George D. Putnam & Co., are desirous of manufacturing grate bars under said letters patent, and of securing a right to purchase the same within one year from February 1st, 1875, if they shall elect so to do; now, in consideration of the premises, the said parties agree as follows:</p> <p>“ The said Putnam and Saunders agree to pay to said Harlow the sum of four hundred dollars as follows, viz.: sixty-six -/gV dollars at the time of signing these presents, and thirty-three dollars on the first day of each month thereafter, commencing on the first day of April, A. D. 1875, until said sum of four hundred dollars shall have been paid. And if, on or before the first day of February next, said Putnam and Saunders shall elect to purchase of said Harlow said letters patent upon the terms hereinafter named, then said sum of four hundred dollars shall be deemed to have been paid on account of the purchase money, but if they shall not elect to purchase, then the same shall be deemed to have been paid for the license to manufacture for one year under said letters patent, and said Harlow, for the consideration aforesaid, hereby gives to said Putnam and Saunders the sole and exclusive right to manufacture grate bars under said letters patent until the first day of February next, or so long as they shall continue to make the monthly payments above provided, but if at any time such payment shall be one month in arrears, then such license may, at his option, be revoked by said Harlow, and this contract terminated; And said Harlow further agrees that, if said Putnam and Saunders, having made all the payments coming due as above, shall, on or before February 1, 1876, elect to purchase of him said letters patent, he will sell, assign and convey the same to them for the sum of two thousand dollars, and interest at the rate of seven per cent, per annum till paid, as follows: interest shall be computed on the principal sum from February 1,1875, every six months, and on payments made by said Putnam and Saunders from their respective dates to the same time, and the balance remaining, after deducting the sum of the payments and interest from the purchase money and interest at the end of six months from said February 1, 1875, shall form a new principal on which interest shall be computed as before. And if said Putnam and Saunders shall so elect to purchase, they shall make to said Harlow a monthly payment of fifty dollars on the first day of February, A. D. 1876, and on the first day of each month thereafter, until the whole amount of payments and interest, computed as above, shall be equal to said sum of two thousand dollars and interest, computed as above. The conveyance and assignment of said letters patent to be made by said Harlow as soon as said sum of two thousand dollars and interest shall have been paid. If, after their election to purchase as above provided, said Putnam and Saunders shall be in arrears one month in their said monthly payments, said Harlow may give them or either of them notice of his intention to terminate and cancel this contract. And if they shall not, within thirty days after such notice, pay to him all arrearages due at the time of such payment, then he may, at his option, declare this contract cancelled and terminated, and thereupon all their rights under the same shall cease and determine, and all payments made by them before that time shall be taken to have been paid for license to manufacture under said letters patent up to that date. Said Harlow will make no contract, conveyance or assignment which will disable him from fulfilling this contract on his part, and in case of his death, while the same remains in force, the same shall be binding on his executors and administrators.”</p> <p>Trial in the Superior Court, without a jury, before Brigham, C. J., who allowed a bill of exceptions in substance as follows:</p> <p>The letters patent, to which the declaration relates, were Ho. 77,458, issued by the United States to Henry Collinson and James O. Boyle on May 5, 1868; and the plaintiff became assignee of the same on September 7,1869. On April 1, 1856, letters patent were issued in England to John Gray, applying to an invention identically, in substance and form, the invention to which the plaintiff’s letters patent applied.,</p> <p>On March 27,1875, the defendants paid to the plaintiff $66.67, and on April 1, following, $83.33, but the defendants afterward discovering, before May 1, following, the fact of the letters patent to Gray, refused to make to- the plaintiff the payment of $33.33, as provided in the contract, on May 1, 1875, and notified the plaintiff that they should refuse to make any further payments to him under the contract, on the ground that the contract related to a void patent, and was without consideration or legal effect.</p> <p>Prior to the contract with the plaintiff, the defendants had manufactured grate bars under a patent issued to them, or of .vhich they were assignees, and, as their manufacture under this patent was an infringement, or supposed by them to be an infringement, of the patent to which the contract declared on applies, they obtained, of the person who was then assignee thereof, a license to manufacture, and manufactured more or less grate bars under it, for their protection in the manufacture of grate bars under their own patent. The defendants’ arrangements to manufacture grate bars, under the patent to which the contract declared on applied, not having proved satisfactory, practically, them, they made the contract declared on with the plaintiff, having then no notice or knowledge of the patent to Gray.</p> <p>The plaintiff contended that there was good and sufficient consideration for the contract declared on, and that such contract could be enforced in this action, notwithstanding that his letters patent were void; and that such consideration consisted in the defendants’ immunity from interference in the manufacture of grate bars under their own patent, although they thus infringed the patent to which the contract applied; security from such interference for one year, with a right of investigation for that period, and of purchase, at the end of that period, of the patent to which said contract applied.</p> <p>The judge ruled, upon the foregoing facts, that there was no consideration for the contract alleged, which would support this action, and ordered judgment for the defendants. The plaintiff alleged- exceptions.</p>

<p>In an action on a recognizance, under the Gen. Sts. c. 124, § 10, it appeared that the notice, which was duly served upon the creditor, appointed a certain room in a building as the place for the examination of the debtor; that, at the time specified in the notice, the creditor went to the building, and found, in a room in the same ouilding other than that specified in the notice, the magistrate, the debtor, his attorney and the officer who made the-arrest; that the magistrate administered the oath and granted a discharge to the debtor in this room. There was evidence that, after the preliminary oath had been administered to the debtor, the magistrate asked the creditor if he appeared, to which he replied that he had not made up his mind, that he was thinking about it; that he then said, "I appear to disappear,” and went out; and that this was either just before the hour expired, or just after. There was no examination of the debtor. Held, that, upon this evidence, the jury would be warranted in finding a waiver, by the creditor, of the right to have the examination in the room mentioned in the notice.</p>

Contract against the heirs of William Dobbins. Writ dated November 24,1876.

<p>Tort. The declaration was as follows: “ And the plaintiff says the defendant is a railroad corporation duly and legally created, established, chartered and organized under and by the laws of the said Commonwealth of Massachusetts, and, as such corporation, owns, manages, operates and uses a railroad extending from Worcester, in said Commonwealth of Massachusetts, to Nashua, in the State of New Hampshire, and, as such railroad corporation, is a common carrier of passengers and freight over and upon its said railroad. And the plaintiff. further says that the defendant, being such railroad corporation and common carrier of freight, on the twelfth day of May, in the year of our Lord one thousand eight hundred and seventy-five, did receive for transportation over and upon its said railroad a certain quantity of freight, to wit, one hundred barrels of flour, which had then and there been transported to said Worcester by other railroad corporations, from an original point of departure which is beyond said Worcester, to wit, from Terre Haute, in the State of Indiana, and which flour was then at said Worcester delivered to and received by said defendant for transportation over its said road to Pepperell, a station on said defendant’s said road, in the same direction- ,as Nashua aforesaid, another station on defendant’s said road, and at a less distance from said Terre Haute, the original point of departure, as aforesaid, of said flour, on said defendant’s said road, than said Nashua, said flour being so received to be delivered at said Pepperell to Moore, Ayer & Co., the consignees thereof: and the said defendant did then and there transport over and upon its said road said one hundred barrels of flour, so delivered and received as aforesaid, to said Pepperell, a station on its said road as aforesaid, to said consignees. And plaintiff further says that the defendant corporation then and there wilfully, knowingly, wrongfully and unlawfully did charge to and receive from said consignees, for the transportation of the said one hundred barrels of flour from the said Terre Haute to said Pepperell, the sum of eighty-five dollars, the same being then and there a greater sum, to wit, five dollars greater, than was then and there, at said time, charged and received by said defendant for the transportation of the like class and quantity of freight from the same original point of departure, to wit, from said Terre Haute to said Nashua, a station on the said road of the defendant, at a greater distance on defendant’s said road from said original point of departure than said Pepperell and in the same direction.</p> <p>“ Wherefore, and by force of the statute in such case made and provided, the said defendant has forfeited and become liable to the plaintiff for the penalty by law in such case provided, to wit, the sum of two hundred dollars, and an action hath accrued to the plaintiff to recover of said defendant the said sum of two hundred dollars.”</p> <p>The defendant filed an answer, containing a demurrer to the declaration. The case was submitted 'to the Superior Court upon the pleadings and certain agreed facts, which it is unnecessary now to state. If upon the pleadings and facts the plaintiff was entitled to recover, judgment was to be entered for the plaintiff for the penalty; otherwise, for the defendant.</p> <p>The Superior Court ordered judgment for the defendant; and the Commonwealth appealed.</p>

Two ACTIONS OF TORT. The first was for personal injuries occasioned to the plaintiff by a stone thrown against her from a blast exploded in making excavations in the construction of a sewer in Suffolk Street, in Lowell. The second was brought by the husband of the plaintiff, in the first case for loss of services of his wife on account of the same injury, and also for injuries to his dwelling-house by stones from similar blasts. Answer, a general denial.

Petition under the St. of 1872, c. 299, § 8, to the county commissioners for a jury to assess the damages caused to the petitioner by the taking of land by the respondent. After the sheriff’s jury, before which the trial was had, had retired to their room and were deliberating upon their verdict, they rang the bell to call the sheriff, who had them in charge, and who was the presiding officer at the trial.

Contract for breach of a covenant contained in a written lease given by the plaintiff to the defendant, by which the lessee agreed “ to quit and deliver up the premises to the lessor or her attorney peaceably and quietly at the end of the term, in as good order and condition .... as the same now are.” The breach complained of was the taking down and removal of a fire-prool safe and vault, a furnace with pipes and flues, and certain counters.

<p>Evidence that the defendant delivered intoxicating liqnor to a minor, which was ordered and paid for by a third person, although the minor stated what kind of liquor he wanted, will not support an action to recover the forfeiture provided by the St. of 1875, c. 99, § 15, for the sale of intoxicating liquor to a minor.</p>

Tort against Reuben S. Hoar and Wallace Handley, for breaking and entering the plaintiff’s close and ejecting bis goods and family.

<p>A., who was in the employ of a firm composed of B. and 0., entered into an oral agreement with B., by the terms of which B. was to give him steady employment, and A was to purchase of B. a lot of land, to be paid for by instalments of his wages until a certain sum was paid. After several instalments had been paid to B., he and C. were summoned as trustees in an action against A. Held, that no fraud appearing in the agreement between A. and B.', and it appearing also that A. had been paid in full for his labor by the firm at the time of the service of the writ upon B. and C., neither of them was chargeable as trustee.</p>

<p>Contract, for goods sold and delivered, against Levi Hill, William Bartlett and James F. Andrews as members of the firm of Hill & Bartlett. Answer: 1. A general denial; 2. A composition deed executed by the plaintiffs with Hill and Bartlett, whereby the plaintiffs agreed to accept a certain sum in full satisfaction of their claim; 8. Payment by the note of Andrews ; 4. A denial that Andrews was a member of the firm.</p> <p>At the trial in the Superior Court, before Brigham, C. J., the plaintiffs admitted signing the composition deed, at which time they took the promissory note of Andrews for an amount equal to fifty per cent, of their claim, and also a release for trespass in attaching the goods claimed by Andrews under a bill of sale; but called one of their attorneys, who was permitted to testify, against the objection of the defendants, that, at the time of signing the composition deed, Andrews agreed with him that the next Monday he would either pay him the money or a note indorsed by his brother ; that he took the individual note of Andrews, not in payment of the twenty per cent, or in payment of the claim, but as security for the money or indorsed note to be paid the next Monday; and that, when making tender, the defendants asked for a receipt in full.</p> <p>To prove that the defendants were partners, the plaintiffs called the defendant Hill, who testified that Andrews agreed to put in the capital if he and Bartlett would do the work; but, on cross-examination, admitted that he and Bartlett gave their note for the goods received of Andrews, and, in the settlements had with Andrews, no account of profit had ever been made to him. The other defendants testified that no such agreement was made, but that a conversation was had in which Andrews said something about becoming a member of the firm at the expiration of one year.</p> <p>The judge instructed the jury, that, if they believed Hill’s testimony to be true, it would make Andrews a partner. The jury returned a verdict for the plaintiffs; and the defendants alleged exceptions.</p>

<p>A., a married woman, during the lifetime of her husband and before the passage of the St. of 1855, c. 304, deposited in a savings bank a sum of money in her name as “ trustee for B.; ” A., until her death, retained possession of the deposit book, and at times drew out portions of the money. A..’s executor took possession of the deposit book, charged himself with the amount of the deposit in his inventory, and about two years after her death paid it over to B., who until then had no knowledge of the deposit. Held, that the deposit was a part of A.’s estate and was improperly paid to B.</p>

Appeal by Martin T. Waterman, in his own right and as guardian of his adopted child, from a decree of the Probate Court, appointing commissioners, on the petition, dated September 25,1876, of Mary A. Foster, to make partition of a parcel of land in Newton, in accordance with the petition. The petition set forth that the petitioner and Sarah E. Small were seised and possessed each of one undivided fourth of the land, and that the shares were not in dispute.

<p>By the third article of amendment of the Constitution of the Commonwealth, the disqualification of pauperism is not required to have ceased to exist for any definite period of time, in order to entitle a man actually free from such disqualification, and otherwise qualified, to exercise the right of suffrage.</p>